Professional Documents
Culture Documents
.Fsgl3Loo0L: The Hutton Inquiry
.Fsgl3Loo0L: The Hutton Inquiry
A. Introduction
1. In these submissions eight questions are addressed :
(1) Was Dr Kelly guilty of a "fundamental failing" in respect of the
meeting of 22"a May 2003?
(2) What did Dr Kelly say at the meeting of 22"d May 2003?
(3) Did Andrew Gilligan accurately report what Dr Kelly had said?
(4) In those respects where Andrew Gilligan did report Dr Kelly
accurately, was Dr Kelly accurate and truthful in what he had
said?
(5) Did the Government cause Dr Kelly's identity to be revealed?
(6) Did the MoD give Dr Kelly adequate warning of the strategy that
it had developed?
(7) Did the MoD provide reasonable support, assistance and
guidance to Dr Kelly after it had named him?
(8) Was there an attempt to belittle or minimise Dr Kelly's status and
position after he had been named by the MoD?
.FSgl3loo0l
B. Was Dr Kelly Euilty of a "fundamental failins" in respect of the
meetin2 of 22°d May 2003?
2. It is submitted that the Inquiry should have regard to the following five
matters in assessing whether Dr Kelly ought to have sought
authorisation for the meeting before it had occurred or ought to have
reported more than the fact of the meeting after it had occurred :
4. The Inquiry will note that the MoD has failed to point to a single,
unambiguous, clearly expressed paragraph in any document that
purports to have regulated Dr Kelly's contact with the media.
2 FS a~ 31 000 2
5. The witness called for the purpose of explaining which documents
purportedly regulated Dr Kelly's contact with the media was Richard
Hatfield. He has relied on different documents at different stages of this
Inquiry to attempt to justify his suggestion that Dr Kelly was guilty of
(in his words) "a fundamental failing" .
9. Be that as it may, Richard Hatfield said on both Day 2 and Day 20 that
the MoD Personnel Manual was "very similar" to or "entirely consistent
with" the DSTL Procedure for Conduct (as to which, see paragraph 14
below). In fact, the documents could not be more different insofar as
3 ~SP~'3I0oo3
they relate to the procedure for obtaining authority to speak to the
media. Under the heading "Broadcasts and media interviews",
Paragraph 6.7 of the MoD Personnel Manual states as follows :
8 .4 Media activities
8 .4.1 It is important to dispel any impression, however unfounded, that
there is a conflict of interest between a particular activity and the
responsibilities of an employee. There is no exhaustive list of
activities that fall into this category, but is in everyone (sic)
interest for individuals to seek approval before indulging in any
such activity and to ensure that records are kept."
14. As to the third of these, the Civil Service Code of Conduct, there is
nothing in that document that gives any guidance to Dr Kelly in relation
to his proper contact with the media, to whom he should have reported
such contact and from whom he ought to have received authority.
15. More recently the MoD, again through Richard Hatfield, has placed
reliance on the Defence Council Instructions of 26"` November 1999 as
being a document that regulated Dr Kelly's contacts with the media.
This reliance is interesting for two reasons . First, because the document
upon which reliance is based had, in fact, been automatically cancelled
at the time of the relevant events . Second, because it reveals something
ofthe state of mind within the MoD and one of their principal witnesses .
5 Fs8~3) ooos
16. As to the first matter, the Inquiry has already noted, through Counsel,
that this DCI was automatically cancelled on 26`h November 2000, some
2'/z years before the relevant events [see MOD/34/4] .
17. As to the second matter, it appears that, at the outset of the Inquiry, the
MoD had provided the Inquiry with those documents that it believed
regulated DK's contact with the media. These documents did not
include the DCI of November 1999 . The MoD note entitled "MoD
Background Note on Dr David Kelly" prepared for this Inquiry
[MOD/2/9-I1] includes a section concerning "The Terms and
Conditions and of Dr Kelly's employment" [MOD/2/10 @ paragraph 7].
This paragraph includes the following sentence : "The conditions of
employment relating specifically to contact with the press are flagged at
A and B which list the disclosure rules for the MoD and DSTL
respectively". Flag A is an extract from the MoD Personnel Manual -
Volume 7 (conduct) [MOD/2/12-15] . Flag B is an extract from the
DSTL Procedure for Conduct [MOD/2/16-36] . It thus appears that the
MOD had not, by this time, managed to find the DCI of November 1999
which is now said to be so relevant and which DK ought to have been
aware of.
18. The family would add that the failure to realise the alleged importance
of this document reflects poorly on Richard Hatfield . If, as he claimed
in evidence, Dr Kelly ought to have been aware of these DCI's, then so
should he. Yet he did not mention them when he gave evidence for the
first time on Day 2 . In short, if the date of their production to this
Inquiry is a reliable test of the DCI's accessibility and prominence
within the MoD generally, it appears that no-one in the MoD was very
familiar with them. The document was sent by the Treasury Solicitor to
this Inquiry by fax at 11 .08am on the morning of 17th September 2003,
the day before Richard Hatfield gave evidence for the second time [see
6
the fax header at the top of MOD/34/4 and following] . Indeed, the
document had not been distributed by the Inquiry by the time that
Richard Hatfield returned to the witness box.
20 . Instead, there was an informal ad hoc arrangement that had existed for
many years :
(2) The briefings that Dr Kelly had been encouraged to give to the
press were not restricted to "mere" technical matters (as the
Government implied in paragraph 11 of its Interim Submissions
[CAB/28/9] . It is clear that his employers also wished Dr Kelly
to brief about the work of UNSCOM (including issues relating to
the personalities involved on the Iraqi side), about the scale of the
WMD activity; and about the assessments that were being made
of the Iraqi WMD programme. Dr Shuttleworth gave clear
evidence that Dr Kelly was encouraged to brief the media about
all of these topics [Day 18, page 135, line 18 et seq] . It is
submitted that this evidence is significant. It shows that it was
part of Dr Kelly's function to brief the press about the assessment
of the Iraqi WMD programme. That is an issue of policy .
7 '31
eSI 00111
introduced himself to Dr Kelly as his line manager . Dr Kelly
informed Dr Wells of the existing arrangements for his contact
with the media. Dr Wells did not query them [Day 5, page 15,
lines 7-12].
21 . The MoD, through Richard Hatfield, does not appear to recognise that
such discretion existed . Certainly, when he interviewed Dr Kelly on 4`h
July 2003 he "asked who had given him authority to exercise his own
judgment about contacts with journalists in defence related business,
since this was contrary to standing departmental instructions"
[MOD/1/24] . The querulous nature of Mr Hatfield's question (which
was never answered) was not assisted by the fact that Dr Wells, who
knew the true position, did not speak up at the meeting and put Mr
Hatfield straight. To that extent Richard Hatfield's ignorance may be
~5,~' 3
1 0 oo 2
excused. Dr Wells' failure to speak up may, of course, reveal something
about the nature and tone of the interview that Richard Hatfield was
conducting : it seems to have caused Dr Wells, a highly intelligent man,
who is Director of Counter Proliferation and Arms Control at the MoD
and also happens to be the United Kingdom's Commissioner to
UNMOVIC, to lose the ability to speak .
's I ~ -s c) 0 0
Gilligan's recent experiences in Iraq:
"He was quite keen to hear from me what my experiences had
been. . .He had not been able to go there himself for four or five
years . [Day 3, page 18, lines 15-20]
24. As to the absence of any mention of the dossier in the telephone call that
led to the meeting, the Inquiry is invited to have regard to the following
matters:
(1) It was Andrew Gilligan who telephoned Dr Kelly to suggest the
meeting.
(3) Andrew Gilligan could not recall whether he had mentioned the
dossier when he called Dr Kelly to set up the meeting. There is
10
f S$ `3 I 0010
therefore no evidence that the dossier was mentioned prior to the
meeting :
28 . Thus, in his minute to Sir Kevin Tebbit of 7`h July 2003 Richard Hatfield
said this:
29. This view rather echoes the view of Richard Hatfield that he expressed
to Dr Kelly in the interview of 4`h July 2003 . Again, the nature of that
view only emerges from Dr Wells handwritten note of the interview . At
the conclusion of the first part of the interview, when Mr Hatfield is
summarising the disciplinary position, Dr Wells recorded Richard
Hatfield as saying the following "Summarize . Created indiscretion .
Unwise. But not say anything shouldn't have. But shouldn't have. . . .
[MOD/5/20, from 7 lines up] (emphasis added). Again, this part of
Richard Hatfield's views did not find their way into any typewritten
record of the meeting (nor did they form part of the position that he
adopted at the Inquiry) .
Conclusion
It is accepted that, in the light of the topics in fact discussed at the
meeting of 22"d May 2003, Dr Kelly would have been wise to have gone
further and informed Patrick Lamb of the content of his discussion with
Andrew Gilligan . He might well have done so, had Mr Lamb not been
so busy and had he had time to sit down with Dr Kelly for a discussion,
as was his custom when Dr Kelly visited his office.
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f53 1-3 1 0 a I z
C. What did DK say at the meeting of 22°d May 2003?
31 . Andrew Gilligan's account of the meeting cannot be relied on, in
particular as to the words spoken by Dr Kelly . This is for five reasons:
33 . The following submissions are all based on the assumption that Andrew
Gilligan's description in evidence of the chronology of the meeting is
correct. That chronology is (in brief as follows) :
(1) That as he and Dr Kelly engaged in conversation he
contemporaneously recorded, in summary form, some of what
DK said in his Sharp organiser;
(2) That when the first part of his conversation with Dr Kelly ended
he saved what he had written on the organiser ;
13 ~S 15 '3 1(301-5
(3) That he proceeded to check with Dr Kelly what material he could
use in a broadcast ("the quote checking process") ;
(4) That this recording process included some cutting and pasting of
text, some writing of new text and some deletion of old text; and
(5) That he then saved the note on the organiser.
35 . First, Andrew Gilligan's account has always been that the trigger that
caused him to start taking notes on his Sharp organiser was that DK
mentioned that the dossier had been transformed in the week before its
production. That is consistent with his Mail on Sunday description of
the catalyst for note taking . In that publication AG described the
chronology as follows:
`Nothing changed' he said, `Until the week before, it was just like I told
you . It was transformed the week before publication, to make it sexier .'
`The classic' he said `was the statement that W1vfD were ready for use in
45 minutes . . ." [BBC/l/27] (emphasis added)
36. This chronology of events makes it crystal clear that immediately after
the mention of the word "sexier" Andrew Gilligan asked whether he
could take notes.
37. It has thus always been Andrew Gilligan's case that it was the mention
of the dossier that provoked his journalistic interest and caused him to
14
f--S 3 13 I C30 14'"
begin to take notes.
38. Yet the memorandum recorded on the Sharp organiser which Andrew
Gilligan suggests was his contemporaneous note of his first conversation
with Dr Kelly records an entirely different matter as the first topic of
conversation [JP/11 or ANG/5/13] . The first topic of conversation,
according to this memorandum, was about chemical reactors not
destroyed by UNSCOM. This physical evidence is simply
irreconcilable with Andrew Gilligan's account of his conversation with
Dr Kelly .
39 . Second, the name "Campbell" does not appear in the first saved version
of the note . It appears only in the second saved version of the note .
Andrew Gilligan gives two possible, but alternative, explanations for
this. First, Alastair Campbell's name was mentioned by Dr Kelly in the
first part of the interview but he failed to record it. Second, Alastair
Campbell's name was not mentioned in the first part of the interview,
instead being introduced by Dr Kelly for the first time in the course of
the quote checking process .
40 . The first explanation is not credible. The mention of this name must
have been a significant part of the interview for Andrew Gilligan (as
Counsel to the Inquiry put it : "a bolt from the blue") .
15 f-S?, I 3 1 0 o1S
Campbell.
42. Third, that the second saved version contains other important and
significant information that did not appear in the first saved version.
Most significant are the lines "real info but unr, incl against ur wishes no
et in orig draft - dull he asked ifanything else cd go in". These do not
appear in the first draft. On Andrew Gilligan's account, either they were
said in the course of the first interview (and he somehow missed them)
or they were only said for the first time in the course of the "quote
checking process" . Neither explanation is credible, for the reasons set
out in paragraphs 40 and 41 above.
43 . Fourth, other material that appeared in the first saved note has been
deleted from the second saved note when there would be no logical
reason to do so. It is submitted that there can be no valid explanation for
the deletion of this material. Certainly none has been given. The
44 . It certainly cannot be suggested that this material was deleted from the
note at Dr Kelly's request in order, for example, to protect his identity or
because it revealed too much technical information. On Andrew
Gilligan's account such a request by Dr Kelly was made: When he gave
evidence to the Inquiry on Day 3 Andrew Gilligan did say that Dr Kelly
had asked him not to use some material : "He asked me not to use a
couple of the more detailed technical quotes . . ." [Day 3, page 107, lines
16
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11-12] . Yet these quotes remained in the second saved version of the
note entirely unaltered .
45. Fifth, the second saved version ofthe note contains many deletions from
and amendments to the text originally saved . On any view these were
unnecessary . Thus, in Ms Rogers' `category 1' text:
(1) The words "the dossier was" appear in the first saved note. They
have been deleted in the second saved note. Why was it
46. The only other document that purports to record Andrew Gilligan's
meeting with Dr Kelly on 22"d May 2003 is Andrew Gilligan's EPMS
message of 28`h May 2003 to Miranda Holt [BBC/7/61] . The document:
(1) Is headed "What my man said". The only meaning of these
words is that what follows is a record of what Dr Kelly said.
(2) Includes passages in quotation marks.
(3) Distinguishes between the questions asked and the answers
given ; and
(4) Distinguishes between that which is within quotation marks and
that which is not within quotation marks . The distinction is
PSI I 3 1 oo 1"7
17
drawn two thirds of the way down the first page.
47. Given the above, Andrew Gilligan's claim in evidence that this was not
intended to be a "verbatim transcript" [Day 3, page 50, lines 1-2] is not
credible . Moreover, on Andrew Gilligan's own account the EPMS was
based on the manuscript note that he had prepared the day after the
meeting of 22"a May 2003 [Day 3, page 50, lines 1-2] . This manuscript
note, on Andrew Gilligan's own account, did record the questions and
answers spoken at the meeting [Day 3, page 30, lines 1-3].
18 FS I I7, POolF
anything like that quickly" . Those sentences are unsupported
by the text files.
"The classic was the statement that WMD were ready for use in 45
minutes . One source said it took 45 minutes to launch a missile and that
was misinterpreted to mean that WMD could be deployed in 45 minutes.
There was no evidence that they had loaded conventional missiles with
WMD, or could do so anything like that quickly" (emphasis added)
19
fSg 1,3100 19
note was because Dr Kelly asked him to change rocket launcher
to missile assembly. Despite this (on Andrew Gilligan's account)
express request he then went to quote Dr Kelly as saying
something different once more, namely to launch a missile .
(3) Third, in both the first and second saved versions of his note
Andrew Gilligan records Dr Kelly as saying " . . .that was
misinterpreted". In his MoS article Andrew Gilligan goes on to
attribute yet further words to Dr Kelly, namely " . . .and that was
misinterpreted to mean that WMD could be deployed within 45
minutes"
(4) Fourth, and most seriously, in his MoS article Andrew Gilligan
attributes words to Dr Kelly when, on the basis of both the first
and second saved versions of his note, those words were never
said by Dr Kelly . These come at the foot of the quotation set out
above, namely "There was no evidence that they had loaded
conventional weapons with WMD, or could do so anything like
that quickly" . These are Andrew Gilligan's own words. Yet he
attributes them to Dr Kelly .
52. Given the impact that the early morning Today broadcasts had on 29~h
May 2003, both nationally and internationally, Andrew Gilligan can
have been in no doubt that his account of what Dr Kelly has said was a
matter of great importance .
20 'r-S 11 3 1 ~) 0 20
53 . Yet it remains a mystery where the note is, or in what circumstances it
came to be lost.
57. In his broadcast on the day of the publication of the dossier, 24`n
September 2002, Andrew Gilligan said this : ". . .there are as I say a
couple of sexy lines designed to make headlines for the tabloids, like the
fact that he can deploy within 45 minutes if the weapons were ready and
that he could reach the British bases on Cyprus, both of which we
actually knew" [BBC4/82] . Andrew Gilligan now concedes that this
21 f-S ~ 1 3 IOo2,i
part of this broadcast was wrong. No-one knew about the 45 minute
claim . It was new information. Yet Andrew Gilligan said on national
radio that it was known about already. Andrew Gilligan now simply
says "Well I was wrong about the 45 minutes on this occasion. It was a
new point" [Day 3, page 116, lines 1-2] . This may provide good similar
fact evidence of the care with which Andrew Gilligan approaches
broadcasting generally and the 45 minute claim in particular.
58. When he gave evidence to the FAC for the second time Andrew Gilligan
said "We said, or the source said, that the transformation had occurred in
the week before it was published, that the transformation had occurred
in the week before it was published at the behest of Alastair Campbell .
That is the claim we have always made and that it the claim the source
has always made and that is the claim that the source continues to
make" [FAC/5/35] . This gives the clear impression that, not only had
the source said certain things in the past, he was continuing to do so (ie a
check had been made, perhaps recently, to verify his views). Yet the
Inquiry now knows that Andrew Gilligan did not contact Dr Kelly after
his interview on 22"d May 2003 . Andrew Gilligan now concedes that "it
was a mistake saying `continues"' [Day 3, page 120, line 7] . At best
this is inexact use of language .
22 ic-SI ,3 ~OOZ,2
before it decided to include it in the dossier
". . .what we've been told by one of the senior officials in charge of
drawing up the dossier was that, actually the government probably erm,
knew that the forty five minute claim was wrong, even before it decided
to put it in" [BBC/1/4]
61 . Andrew Gilligan has now conceded that Dr Kelly said no such thing .
He was, of course, bound to make this concession given the content of
the memorandum on his Sharp organiser and his EMPS memorandum to
Miranda Holt .
The reason the 45 minute claim was not in the original draft was
because it was single sourced
'OO
1,3
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" . . .the forty five minute pointer, was, was probably the most important
thing that was added. Erin, and the reason it hadn't been added in the
original draft was that it was, it was only erm, it only came from one
source and most of the other claims were from two . . . [BBC/1/4]
(emphasis added)
64. Andrew Gilligan has now conceded that Dr Kelly said no such thing.
Again, the concession was inevitable given the contents of Andrew
Gilligan's record of the meeting .
66. Andrew Gilligan now accepts that these were not Dr Kelly's words [Day
19, page 13, lines 13 - 20] .
67 . The family anticipate that there will be little dispute in relation to this
issue . As resolution of it depends in part upon the Inquiry's findings as
to the process of the compilation of the dossier (upon which the family
make no submissions), these submissions relate to four matters that it is
anticipated that the Inquiry is very likely to find that Dr Kelly did
mention to Andrew Gilligan in the course of the meeting on 22°d May
2003 .
f-~SZ 13
24
O
(3) That the 45-minute claim was included in the dossier shortly
before it was published;
(4) That there was dissatisfaction amongst "people in intelligence"
about the 45-minute claim - this was because it did not reflect the
considered view that they were putting forward.
69. There are two important questions : first, whether what Dr Kelly said
was accurate ; second, whether what Dr Kelly said was truthful.
70. Each and every one of these suggestions was true in every material
particular and was known to Dr Kelly. In short, if Dr Kelly did say
these things, and the Inquiry is likely to conclude that he did, he was
being entirely accurate and truthful .
71 . The claims that the 45-minute claim was single sourced, that it was
nonetheless based on real intelligence, but that it was included in the
dossier shortly before it was published have all now been established to
have been true beyond peradventure. In the circumstances no
supporting references to these facts are given herein .
25 fs,3 1 3 joo-L,5
73. The family invite the Inquiry to find that:
(1) The Government made a conscious decision to cause Dr Kelly's
identity to be revealed; and
(2) It did so in order to assist it in its battle with the BBC.
74. The evidence of a conscious decision, taken for such a reason, does not
come from a single document or a single witness . The evidence of such
decision, and of such improper motives, is derived from inferences to be
drawn from multiple documents and witnesses . These are:
26
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that "we should simply name our man".
" . . .he is not a member of the Intelligence Services and was not
involved in drafting the dossier but more likely is a WMD
specialist at the Foreign Office"
(2) The second, on 9`~ July 2003, under the heading "MoD man
admits `I spoke to the BBC"', contained the following sentence :
82. When this matter was raised by the Inquiry in the course of the
Government's closing speech (it appears that it was not the intention of
the Government to have addressed the issue), Mr Sumption QC said "I
cannot help your Lordship on that. . . . I cannot rule out the possibility
that somebody without any authority, somewhere in Whitehall, who had
got wind of this, was indiscreet, although it is fair to make the point also
that Mr Baldwin's article is also based, as it expressly says, on sources
within the BBC . . ." [Day 25, page 88, line 20 et seq] .
28
4:~S 3 I3 1 002-,g
committed by a person within Whitehall who was a rogue
element and who was on a frolic of his or her own. Two articles
appeared . They appeared at a critical stage in the process . Mr
Baldwin appears to have had two sources . A person who was
knowledgeable enough to pass information of the kind mentioned
in the articles would also presumably be aware of the need (in Mr
Hoon's words) "to take every step to protect Dr Kelly's
anonymity" .
(4) Information that was likely to lead to Dr Kelly's identity being
revealed was not only being passed to Mr Baldwin. An article
appeared in The Independent on 9`h July 2003 that included the
following paragraphs : "The official, who is not a member of the
intelligence service, has been in his position for four years, has
served as a member of UNSCOM, the United Nations mission
which carried out inspections for Iraq's alleged chemical,
biological and nuclear weapons programme. . .MOD sources said
last night that he will notface charges under the Official Secrets
Act. He may be subject to disciplinary action for an
"unauthorised meeting" with a journalist . . ." [CAB/1/504] . The
significance of this article is that it must have been written on 8th
July 2003 (the day of the Press Statement) . The second italicised
part of it suggests that MOD sources had briefed the newspaper .
The first italicised part of it reveals that the newspaper had been
informed that (a) the source had been in his position for 4 years
and (b) had served as a member of UNSCOM. This was not
material that had appeared in the Press Statement. A reasonable
inference is that the MoD sources that briefed the paper that
disciplinary action may be taken against the source also briefed
the newspaper as to (a) and (b) above.
84. The family would note, however, that Counsel's response to the Inquiry
86. The Press Statement gives the following six significant clues as to the
identity of the person referred to in it:
(1) The individual works in the MoD ;
(2) The individual is an expert on WMD;
(3) The individual has advised ministers on WMD;
(4) The individual contributed to drafts of historical accounts of UN
inspections ;
(5) The individual is not a member of the Intelligence Services ;
(6) The individual is not a member of the Defence Intelligence Staff.
87 . The fact that the Press Statement did give clues, and was obviously
meant to give such clues, as to the identity of the official who had
revealed himself is confirmed by Richard Norton-Taylor. He said the
30 f-S_b 1 3~~0 30
clues given in the Press Statement "whetted my appetite" [Day 9, page
105, line 20] . No witness has explained why it was necessary to include
such material within the Press Statement.
89 . At 3 .45pm on 9`h July 2003 Tom Kelly gave further significant clues to
the identity of the official who had been referred to in the Press
Statement of the previous day. The significant clues are as follows :
(1) The PMOS "said that the person was a technical expert who had
worked for a variety of Government departments, including the
MoD" [CAB/1/220]
(2) The PMOS said that the person was currently working with the
MoD [CAB/1/220]
(3) The PMOS said that his salary was paid by another department
[CAB/1/220]
31 f-S B , 3 1 o o3 I
(4) The PMOS said that he was not a member of the Senior Civil
Service [CAB/1/221]
(5) The PMOS said that the person was not a member of the SIS,
"Nor was he involved in military intelligence" [CAB/1/221]
And
"There were two aspects of that briefing that struck me. The first aspect
of the briefing was precisely the details that you have gone into, namely
that details about this individual were coming forward . . .I took the view
that there could be very few people who could fit such a description and
that it would be possible, through a process ofjournalistic investigation,
to relatively quickly come to that person's name" [Day 9, page 89, lines
9-19]
Clues given by persons other than the MoD Press Office on 9t' July
2003
32 Fsgl3Ipp3Z
92 . Mr Blitz says that on 9r'' July 2003, after the 3 .45pm Lobby Briefing, he
made a telephone call to a "Whitehall official" . He asked whether the
individual worked in the DTI. He says that, at the end of the
conversation, which was off the record, "I came to the conclusion that
the individual was paid for by the Foreign and Commonwealth Office"
[Day 9, page 90, lines 20-25] . This is significant for two reasons . First,
it was an off the record conversation with a Whitehall official. Second,
Mr Blitz was given precisely the information that, moments earlier, Tom
Kelly had been refusing to give in the Lobby Briefing :
93 . The family note the double standards at work: one arm of government
making a point, in public, of refusing to disclose information which
would identify the official (and claiming to be virtuous thereby) yet very
shortly afterwards a different arm of government, off the record, doing
exactly that.
94 . Mr Blitz says that, later in the afternoon of 9th July 2003 (after they had
identified, but not confirmed, the name of Dr Kelly) Mr Adams spoke to
a different "Whitehall official", again on an off the record basis. This
official replied that Dr Kelly "was seconded to the MoD from the Porton
Down defence establishment and his salary was paid for by the FCO"
[Day 9, page 94, lines 9-12]
98 . The family would add that it was not merely that the Q + A material
contained a decision to confirm Dr Kelly's name if it was put to the
Press Office by a journalist . Quite remarkably, journalists were told of
this strategy when they telephoned the MoD : they were told that, if they
put the correct name, it would be confirmed. Richard Norton-Taylor
confirms that on 9`h July 2003 he was informed of this strategy by the
MoD Press Office, albeit he cannot remember the time at which he was
told [Day 9, page 107, lines 13-18] . Quite why this was necessary
remains a mystery.
34
FS1l31 O034-
reasonable and proper approach to media requests :
100. By 8"' July 2003 the strategy had changed. The family would accept
that the drafting of Q + A material is an evolving process . The family
would also accept, as the Government contended in its oral submissions,
that Q + A material should not be regarded as a record of Government
policy. Neither of these submissions addresses the question of why it
was considered proper and appropriate to decline to confirm the
official's name in the late evening of 7"' July and yet by early afternoon
the next day precisely the opposite decision had been taken.
101 . The Inquiry is invited to compare the strategy that the Government
adopted in relation to Dr Kelly with the efforts made by the Government
to conceal, at all costs, the identity of Dr Brian Jones and the complaints
that he had made as to the process of the compilation of the dossier.
35 ~.S ~ ~3 IC035
Alastair Campbell's diary
103 . It is hardly surprising that, given the plain impropriety of taking such a
course of action, the inquiry has been unable to discover any official
written record of a desire in the Government to reveal or cause to be
revealed Dr Kelly's identity. No-one would commit such an improper
thought to an official written record . They might do so in a document
which they believed would not become public, such as a diary. That is
exactly what occurred.
104. Alastair Campbell's diary reveals that it was his desire and the desire of
others, including the Secretary of State for Defence, that the fact and
identity of the source should be made public in order to assist in its
battle with the BBC .
105. Alastair Campbell's diary for 9`h July 2003 reads as follows [see
CAB/39/2] :
"We kept pressing on as best we could at the briefings, but the biggest
thing needed was the source out. We agreed that we should not do it
ourselves, so didn't, but later in the day the FT, Guardian after a while
Evans got the name"
106. This entry was written at a time when the fact of the source had been
revealed . That had occurred by reason of the Press Statement of 8`h July
2003 . The reference to "needing the source out" must, therefore, be a
reference to needing the identity of the source out.
FS 1131 Do 3 b
36
Davies. The text of the e-mail reads "We spoke. Herewith draft letter
109. For example, and most notably, the Secretary of State for Defence was
at pains to suggest, both before giving evidence (eg the News 24
interview : TVP/3/238) and when in the witness box for the first time,
that, so far from there being such a policy to disclose Dr Kelly's
identity, he had done his utmost to protect Dr Kelly's anonymity,
f-STJ 131 oa 3 ~
37
because it would not have been right to reveal his identity until he could
be sure that Dr Kelly was Andrew Gilligan's single source . Indeed he
said he never was sure until after Dr Kelly's death.
110 . The hypocrisy of this stance is demonstrated most clearly by Alastair
Campbell's diaries [CAB/39/1-2] . They show (if accepted by the
Inquiry) that Mr Hoon's denials of the Government's strategy were false
and that he was a leading protagonist in putting Dr Kelly's name into the
public domain.
111 . Alastair Campbell's diary entry for 4`h July makes reference to a
conversation with Mr Hoon in which Mr Hoon said "There was a case
for trying to get some kind of plea bargain" .
112 . The plea bargain suggested by the family is that there would be no
formal disciplinary proceedings and therefore no risk of loss of
employment, pension rights or security status provided Dr Kelly gave
evidence to the FAC and the ISC in accordance with directions or steers
with which he would be provided .
113 . Even if the plea bargain strategy was never implemented, the fact that it
was contemplated demonstrates the direction of the thinking of the
Government and of Mr Hoon in particular .
114. There is further support for the suggested plea bargain in the entry in
Alastair Campbell's diary for 15`h July (the date on which Dr Kelly
appeared before the FAC) where there is a reference to "MoD
assurances he was well schooled" .
38
\C-S 313) C038
openly revealed in any event ignores the stance taken in evidence by
numerous witnesses, including the Secretary of State for Defence, that
such open naming would not be justified until it was clear that Dr Kelly
was Andrew Gilligan's single source .
G. Did the MoD ensure that DK was involved in, and consented to, its
naming strategy?
116 . The strategy developed by the Government was, even on its own case,
unprecedented. That is the very word used in the Q + A material : "It is
unprecedented for a Government Department to make a statement of this
sort. Why have you done it?" [MOD/1/63] In such circumstances there
was a enhanced duty on the Government to ensure that Dr Kelly:
(1) Was fully involved in, and consented to, the process as it was
designed . This did not occur.
(2) Was kept fully and properly informed as the process was
implemented. This did not occur .
118. The Government has advanced two possible reasons why Dr Kelly was
not so involved . First, that there was simply not time . Second, that his
consent was not, in any event needed .
No Time To Explain
39
f-SS ~ 3 ) 0035
119. The first explanation was advanced by Pam Teare. She said this:
" . . .the idea of Dr Kelly's name being made public had not been
discussed with him . The time that that you would have had to consider
it, between when he was consulted about the final version of this
statement and when it went out, would have been insufficient for him to
consider it properly and to make what other arrangements he needed"
[Day 6, page 49,lines 12-18] .
40
,~,S,3 1 3 1 00 4-0
TVP/3/302] . There are two significant features about this Press
Statement and the manner in which it was passed to Dr Kelly.
124. First, it does not contain any information that would be likely to lead to
Dr Kelly being identified . The crucial third paragraph of the Press
125 . Second, when the Press Statement was discussed with Dr Kelly in the
course of the meeting on 7`}' July 2003, there was no discussion of any
extra detail being added in which might cause him to be identified.
Indeed, according to Mr Hatfield's account of the meeting, Dr Kelly was
expressly told quite the opposite : that it would not be necessary to reveal
his name or say anything more than his account did not match that of
Andrew Gilligan . This is Richard Hatfield's record of this part of the
meeting:
"I said that I did not think that it would be necessary to reveal his name
or to go into detail beyond indicating that the account given to us did
not match Gilligan's FAC account, at least initially" [MOD/1/54]
The Q + A Material
126. No witness to the Inquiry has suggested that Dr Kelly was ever informed
of the contents of the Q + A material .
127. It is curious indeed why Mr Hatfield did not attempt to convey at least
the sense of the Q + A material to Dr Kelly in the course of his
conversation . He had the Q + A material before him when he spoke to
Dr Kelly at 5. lOpm on 8"' July 2003 . Yet he did not mention it.
41
(-sg'3'oa4-~ l
The Decision to Confirm the Correct Name
128. No witness to the Inquiry has suggested that Dr Kelly was ever informed
of the decision by his employer to confirm his name if it was put to the
MoD by a journalist . No explanation has been given of why this was
not done.
Conclusion
129. It appears that Mr Blitz, of the Financial Times, had Dr Kelly's interests
more in mind that did his employers. Even though Ms Teare had
already confirmed Dr Kelly's name as being correct to Mr Adams in the
late afternoon of 9`h July 2003, Mr Blitz took the trouble to telephone
Ms Teare himself (1) in order to confirm the name and (2) to ask if he
could speak to Dr Kelly directly. His reasons appear to have included
the fact that he was about to put the name of a man into the public
domain in connection with a very serious political story and that he felt
that he had to get in touch with Dr Kelly to tell him what he was doing
[Day 9, page 99, lines 5-22] .
42
(-7s, I 3 ) oo 4-2-
pressed" (ie the statement was about to be released) at 5.10pm on 8`h
July 2003, that is 35 minutes before the Press Statement was released .
132 . Dr Kelly had not been given advice, guidance or assistance as to what
the consequences of the Press Statement might be before it had been
released. He had not been told, for example:
(1) Whether to take calls from the press ;
(2) Whether to volunteer that he was the individual named in the
Press Statement if a journalist asked him;
(3) Whether to make no comment to all questions asked;
(4) The identity or telephone number of a person within the MoD
Press Office to whom all press enquiries should be dispatched ;
(5) To make alternative accommodation arrangements - in short to
leave his house to avoid press attention.
133 . There has been no explanation of why Dr Kelly was not given such
assistance before the Press Statement was released . Presumably none
exists.
134. The MoD contacted Dr Kelly only after the Press Statement was
released to discuss such matters . Even then only the matters mentioned
in (4) and (5) above appear to have been discussed on Kate Wilson's
account of the calls . She says that she called Dr Kelly twice on the
evening of 8`h July 2003 (at the first call Dr Kelly said that he was out
walking - Mrs Wilson called him back after 20 minutes) . Records
indeed confirm that two such calls were made from Mrs Wilson's office
[MOD/39/2] . The first call was made at 8 .26pm and lasted 51 seconds .
The second call lasted was made at 8 .46pm and lasted 1 minute and 19
seconds . So, less than 2'/2 minutes of time was the extent of the
assistance the MoD could manage could give to Dr Kelly . And that
assistance came at some 2`/z hours after the Press Statement had been
43
f---SS 1
3
]
O
released.
137. The MoD Press Office did not telephone Dr Kelly because it was
thought that Dr Wells, as Dr Kelly's line manager, should break the
news of his identification. Yet the Press Office did not know Dr Wells
mobile telephone number and had taken no steps to obtain it.
139. Telephone records show that, on Friday 11 `h July, while Dr Kelly and his
wife were away in Cornwall, Dr Wells made a number of telephone
calls to Dr Kelly. Only two of these calls exceeded 3 minutes and most
were no doubt concerned with arrangements for the Select Committee
hearings and the briefing meeting the following week.
44 -S 113 1 Do +-4-
140. It is right to note that Dr Wells cancelled a trip to the USA in order to
accompany Dr Kelly to the Select Committees on 15t' and 16`h July. Mr
Patrick Lamb also took the trouble to speak to Dr Kelly on the telephone
to give him reassurance .
made with Mrs Kelly. Apart from casual enquiries as to how he was no
one seems to have sat down with him and discussed his problems with
him in depth .
142 . In the face of this evidence it to hard to comprehend how the support
given by the Government to Dr Kelly could be described, as it was, by
Mr Hatfield, as "outstanding" .
144 Instead, the MoD (on No 10's instructions) used the meeting to tell Dr
Kelly what he should and should not say at the FAC and ISC. The focus
of the meeting was not Dr Kelly's welfare, rather to ensure that Dr Kelly
did not say anything that might embarrass the Government.
145 . This was despite information that Dr Kelly's morale was low:
45 ~-S$ ) 3 ) Do 4-S
(1) In his article in the Sunday Times of 13`h July [CAB/l/526] Mr
Rufford described Dr Kelly as "looking pale and tired" and
complaining that he had had a difficult time and that the matter
had played heavily on his mind since it broke 6 weeks earlier .
(2) On 14`h July a memorandum from Colin Smith of the FCO said
that Dr Kelly was feeling the pressure and not handling it well .
The suggestion that the MoD were giving "steers" to Dr Kelly at the
meeting has been denied by many witnesses . The evidence that this is
exactly what occurred is found in four sources .
146 . First, when he gave evidence for the first time, Mr Howard said that it
was his intention, before going into the meeting, to identify those areas
of questioning that Dr Kelly could and should respond to and also "those
areas of questioning where he could legitimately say: actually this is
more a matter for the Ministry of Defence, for ministers rather than for
me" [Day 5, page 152, lines 10-13] . Counsel to the Inquiry realised the
importance of this answer. He immediately read it back to Mr Howard
(from the transcript) and confirmed that this was Mr Howard's evidence .
Mr Howard gave such confirmation [Day 5, page 153, lines 2-18] . The
importance of the answer is that it reveals that it was Mr Howard who
was identifying not only the "tricky areas" but also he who was giving
the suggested answer to Dr Kelly, namely "that is a matter for
Ministers".
147 . Second, when the note of the meeting came to be typed up by Dr Wells,
he curiously decided to omit the phrase "tricky areas" from it. It is
curious since not only is there no doubt that that phrase was used (it is in
Dr Kelly's notes, in Mr Howard's notes and in Ms Smith's notes) but
the phrase also appears in Dr Wells' own notes - why should he not
follow faithfully his own notes?
46
C~~,B ),_~ ) c)o 4-fo
148 . Third, Alastair Campbell's diary reveals that he had been given
"assurances" by the MoD that Dr Kelly was "well schooled" [see his
entry for 15`h July 2003 at MOD/39/2]. Schooling a witness who is to
appear before a Parliamentary Committee is an improper activity. It is
an entirely different activity from ensuring that the witness knows the
constitutional position of the committee and highlighting for him the
likely topics of discussion. Schooling a witness involves coaching and
instructing him as to the evidence that it is desired he should give . If
that did not occur, then why did Mr Campbell choose to record it in that
way?
Introduction
149 . It is further submitted that the conduct of at least 2 members of the FAC
is open to criticism .
150. Mr David Chidgey asked Q23 on a false and misleading basis, namely,
(1) That he was quoting from a record made by Ms Watts of a
conversation between Dr Kelly and herself, when in fact he was
quoting from material provided by Mr Gilligan ; and
(2) That the conversation in question took place, not on the
telephone, but when Ms Watts and Dr Kelly met face to face . Dr
Kelly took this to be the occasion of their only meeting on 5
November 2002 and answered accordingly .
151 . The hectoring nature of Q's 31, 106, 107 and 167 by Mr Andrew
Mackinlay was lamentable. It is also interesting to note that Dr Kelly
answered Q's 106 and 107 with `steered' replies, namely, that the
information would be provided by the MoD.
47
`~S 113 ~ -0 0 4,7
152. The family submits that there is evidence of a Government campaign to
minimise Dr Kelly's status within the MoD during his lifetime. The
purpose of this campaign was to demonstrate that Dr Kelly could not
have known what Andrew Gilligan claimed that Dr Kelly had told him
on 22°a May 2003, thereby undermining the credibility of Andrew
Gilligan's story. Irrespective of the existence of and motive for such a
campaign, downgrading Dr Kelly's status caused him and his family
great distress.
153 . In his evidence Professor Hawton expressed the opinion that the major
factor contributing to Dr Kelly's death was the severe loss of self-
esteem resulting from the feeling that people had lost trust in him and
from his dismay at being exposed to the media [Day 14 page 132 lines
2-8] . It is submitted that demeaning Dr Kelly's status was a factor
which contributed to this loss of self-esteem and also to Dr Kelly's
decision to take his own life .
154. After Dr Kelly's death there was evidence of a shift in the stance of the
Government to portray Dr Kelly as an eccentric fantasist . The purpose
of remarks made in furtherance of this stance was to diminish the
Government's responsibility for Dr Kelly's death. Even if there was no
such intention, the remarks caused the family great distress.
156. In a memorandum to the Secretary of State for Defence dated 10'h July
2003 Sir Kevin Tebbit described Dr Kelly as "such a relatively junior
48 r_ f Q
) 3 ) oo +-
official" . He also said that Dr Kelly " . . .is, after all, not the
Government's principal adviser on the subject, nor even a senior one"
[MOD/1/75]
159. Mrs Kelly gave evidence that comments appeared in the press about Dr
Kelly's junior status : "It was just a total belittling in some ways [Day
11, page 36, lines 12-14] . She also said that "He was in dismay. . .He
hated that. It was not fair. He had been working extremely hard,
working his socks off for years. I think he must have felt it was unfair.
He was so stressed by now the belittling hit him perhaps rather later than
at this stage" [Day 11, page 37, lines 1-7]
160. Mrs Kelly also spoke of a telephone call when she and Dr Kelly were in
Cornwall to the effect that the Foreign Secretary had complained that,
when he gave evidence to the FAC, with Dr Kelly beside him as a
technical adviser, he had been "accompanied by somebody so junior"
and that Dr Kelly was "Deeply, deeply hurt" by this comment [Day 11,
as
(,--s 9'3 ) o e TJ
page 38, lines 25-39] . Mr Straw has since written to Lord Hutton
(copied to Mrs Kelly) to the effect that he was not at all dissatisfied with
Dr Kelly as his companion before the FAC .
Dr Kelly's Status
162 . The MoD Press Office had been briefed, by the Q + A material, to
inform journalists that Dr Kelly was not a member of the Senior Civil
Service and that he was a middle ranking official . To focus on
exclusion from the Senior Civil Service was disingenuous . In the
context of the issues about which he had allegedly spoken, to state that
he was "middle ranking" was wrong.
163 . First, in a curriculum vitae prepared by Dr Kelly this year and disclosed
to the Inquiry on 18'h September 2003 Dr Kelly describes himself as
"Chief Scientific Officer (Civil Service Grade 3, DSTL level 9)
(individual merit promotion" [document reference not known] . It thus
appears that, at the time of his death Dr Kelly had reached Level 9 at the
DSTL. There are only 12 persons at this level. Accordingly to Richard
Hatfield, DSTL Level 9 is "fractionally below the Senior Civil Service"
[Day 2, page 36, line 19] . This was so, Mr Hatfield said, even though
Dr Kelly's citation for his CMG records his grade as "individual merit
grade 5" and that, at that time, the Senior Civil Service began at Grade
5. Mr Hatfield said that his "interpretation is he was indeed a
substantive Grade 5" but "was certainly . . . .not a member of the SCS as
it is defined across Government" .
50 ~-S ~ l 3 J Oo SO
164. Second, Dr Kelly had been awarded the CMG in 1996. This is an award
normally only made to the SCS [Day 2, page 44, lines 11-20] . Richard
Hatfield attempted to avoid the inference which the family suggest
should be drawn from this award when he gave this answer :
165 . It is Mr Hatfield that was wrong . The Senior Civil Service was formed
on 15` April 1996. Dr Kelly was made CMG on lst August 1996
[MOD/3/134]
166. Third, Dr Kelly's pay band was well within the salary scale of a member
of the SCS [Day 2, page 83, lines 1-6] .
167. Fourth, there can be no doubt that Dr Kelly was the leading expert in
this country on Iraqi WMD. His employer knew this . Indeed that view
had been expressed by his employer in annual reviews :
(1) "David Kelly is the UK expert on all aspects of Middle Eastern
CB proliferation . His expertise is in great demand by
Government . . .and internationally (UN) in that he is able to
coalesce science, foreign policy and intelligence into a coherent
package. He operates at the highest level and is politically very
astute" [MOD/3/26]
(2) "David Kelly continues to be the expert on Iraqi W1VID"
[MOD/3/11 ]
51
e-S3' '?) D osI
carried a report that Sir Kevin Tebbit had stated that Dr Kelly was
unreliable and eccentric . Sir Kevin was also said to have made a
circular gesture with his finger around his temple. Sir Kevin has not yet
had the opportunity to deal with this report, which is likely to be the
subject of a supplemental submission by the family after Sir Kevin has
given evidence .
169 . On Monday 4th August 2003, two days before Dr Kelly's funeral, The
Independent newspaper reported that one of the PMOS, Tom Kelly, had
told a journalist, "This guy was a Walter Mitty" [CAB/16/03]
171 . It is submitted that it is difficult to accept this statement at face value for
four reasons :
(1) The slur was included in remarks made to several journalists, not
just to Paul Waugh of The Independent ;
(2) The statement of apology said that Mr Kelly was trying "to
outline the questions facing all parties that the Hutton Inquiry
would have to address" : that is to say one of a `menu of options'
to use the phrase employed by Mr Waugh in his article in rebuttal
of Mr Kelly's explanation published in The Independent on 6`n
August 2003 [MED/7/01] . Mr Waugh said that there was no
menu of options : the Walter Mitty remark followed immediately
upon the statement that one of the key issues for the Inquiry
would be whether Dr Kelly contributed to his own downfall .
(3) The remark was made on the telephone from No 10 Downing
Street in response to a call made by Mr Waugh to Mr Kelly as the
~~ 1 3 ) aosz
PMOS . The obvious inference is that the remark was made as a
52
statement of Government thinking or strategy. Mr Kelly never
claimed that it was his view of Dr Kelly . Indeed, he had no basis
in fact for such a claim .
(4) In the absence of any cogent explanation to the contrary, the
obvious inference is that Mr Kelly was voicing views held or
opinions expressed within 10 Downing Street.
Jeremy Gompertz QC
Jason Beer
7`n October 2003
The Hutton Inquiry
Dr Kelly's status) .
Thefacts
into the public domain . -Various options had been considered - "plea
bargain!", "to get the source up"Z, "get it out through the papers"3, "simply
name the man"' - but no concluded strategy had been agreed_ There was an
(i) giving sufficient information to allow the media to narrow down the
(ii) informing the media that if they corracfly guessed the name it would
be confirmed;
' CAB(39/001
` CAB./39/001
3 CAE~39/001
° MOD/44/15
5 MOD/1/0051
6_ CAB 21/3 CAB 21.'S
MOD/1/0056
e MODil/0062
5 Sir Kevin Tebbit appeared to agree that this represented a change of stance9,
6 On any view Dr Kelly was not told about the chancre of stance and so he
could not consent to it'Z. There was no reason not to keep Dr Kelly
(i) purportedly, part of the strategy was to proceed with Dr Kelly's co-
operation ; and
Submissions
closing, that "whatever the position in strict law; common decency required
- ,~5~ I 3 ~ oo50
8 The family is content for the focus to remain on that which fairness or
9 Three aspects of Sir Kevin Tebbit's evidence are consistent with the body
14 Sir
10 First, having confessed that he overdid the "rsIatively junior''' -point
junior" ofnciaIls . The Family repeats the o'vservations on this point in the
.
written submissionsls
hardly 'knew that Dr Kelly was regarded as a "bit weird" and "rather
position .
F5t 13 ~, c~~~ ~
12 Third, Sir Kevin is reported by Mr Campbell as having described Dr Kelly
as a "show of£"19 Sir Kevin refused to accept that he used these precise
of whether Sir Kevin actually used the precise words "show of*." may be a
13 The family are puzzled that the Prime Minister's injunction against
on the public record that the MOD regarded Dr Kelly as "unreliable" and
smear reported in the Sunday Telegraph with the retraction of the "Walter
Mitty" slur. Perhaps it is because Sir Kevin Tebbit feels that the blame lies
with the Sunday Telegraph for reporting his remarks, rather than with him
14 Interestingly, it appears that Sir Kevin did not seek prior authorisation for
speaking to a journalist prevent him from giving his views on Dr Kelly. Nor
FS3I 31 00 S8
afterwards. Nor, apparently, was there a need to correct the public record
The law
contract of employment ;
(iii) the first data protection principle contained in Schedule 1 to the Data
thereby breaching any of these duties. It all depends upon the context and
17 Imtilied term: As has been pointed out"~ the family have not seen a
j'The earher speech and question and answe- session ware authoased- Day 2= . page ?8 Imts 6-10
Z" FEvM/101000:
-S GSBi3/0003 at para 8
16
FSB,'2100 B B
6 FSB I3 IooS5
Dr Kelly's contract of employment was that the Government wotuld not
not necessary to show that the employer intended this consequence . Rather,
it is enough that judged reasonably and sensibly, this was the likely
666 .
destroyed by the employer's act include the nature of the act complained of,
terms of harm that might reasonably be expected to result for the employee,
whether the act was preceded by consultation and whether there was any
sort of reasonable expectation in the employee that the act would not be
committed.
19 Here, as a result of what he had been told. Dr Kelly was entitled to assume
that he would not be named by the Govemment, at !-east not without being
given adequate warning. The change in stance, the failure to inform him of
the change in stance, and the failure to inform him immediately after his
employee.
confidence .
reference to one of the legitimate aims set out in article 8(2) . In particular, it
order to protect the rights and freedoms of others, notably other civil
servants who might otherwise have been subjected to scrutiny by the media .
8(2) .
take steps to safeguard his right under article 8(1) was that (i) the
the confirmation of his name to the media and (,ii) the Government had in
330 at para 31 .
26 Data Protection Act 1998 : Unless an exemption applies (and none does), by
virtue of section 4(2) of the Act the Government was obliQed to comply
with the data protection principles set out in Schedule 1 to the DPA. The
28 For the reasons given above the disclosure of Dr Kelly's identity, without
Jeremy Gompertz QC
Jason Beer
Jeremy Jolknson
16tb October 2003
The Hutton Inquiry
Dr Kelly's status) .
Thefacts
into the public domain. Various options had been considered - "pica
bargain!", "to get the source up"2, "get it out through the papers"3, "simply
name the man"4 -but no concluded strategy had been agreed. There was an
(ii) informing the media that if they correctly guessed the name it would
be confirmed;
' CABl39/001
z CABr39/001
' CAB:39/0D1
° MOD%44/15
5 MOD/1J0051
6 CAB 21/3 CAB 21'5
' MOD11/0056
s MOD/1/0062
5 Sir Kevin Tebbit appeared to agree that this represented a change of stance9,
6 On any view Dr Kelly was not told about the change of stance and so he
could not consent to it12. There was no reason not to keep Dr Kelly
(i) purportedly, part of the strategy was to proceed with Dr Kelly's --c-
operation ; and
Submissions
closing, that "whatever the position in strict law, common decency required
~s3 1 3 I oo ~6
8 The family is content for the focus to remain on that which fairness or
9 Three aspects of Sir Kevin Tebbit's evidence are consistent with the body
10 First, having confessed that he overdid the "relatively junior" point" Sir
junior" ofiicial}5 . The Family repeats the observations on this point in the
written submissionsls .
hardly knew that Dr Kelly was regarded as a "bit weird" and "rather
position .
4
FS,~ 13 1 0067
12 Third, Sir Kevin is reported by Mr Campbell as having described Dr Kelly
as a "show off:"Y9 Sir Kevin refused to accept that he used these precise
of whether Sir Kevin actually used the precise words "show off' may be a
13 The family are puzzled that the Prime Minister's injunction against
on the public record that the MOD regarded Dr Kelly as "unreliable" and
smear reported in the Sunday Telegraph with the retraction of the `W, alter
MittS" slur. Perhaps it is because Sir Kevin Tebblt feels that the blame lies
with the Sunday Telegraph for reporting his remarks, ratner than with him
14 interestingly, it appears that Sir Kevin did not seek prior authorisation for
this discussion with a journahst''' . Nor did his realisattror. that he was
speaking to a journalist prevent him from giving his -views on Dr Kelly. Nor
~ 3 1 00'39
afterwards . Nor, apparently, was there a need to correct the public record
The law
contract of employment;
(iii) the first data protection principle contained in Schedule 1 to the Data
thareby breaching any of these duties. It all depends upon the context and
17 implied term: As has been pointed out`5 the family have not seen a
-' Tne earlier speecn and question and answer session were auflbons-d - Day 25 . n_ a_ee 7E ianes 6-10
~ FA1~4/10/000=
Z`QSB/3/0003 at para B
'FSB,11DOBB
00 G2)
Dr Kelly's contract of employment was that the Government would not
and confidence which should exist between employer and employee _" It is
not necessary to show that the employer intended this consaquence. Rather,
it is enough that judged reasonably and sensibly, this was the likely
666 .
destroyed by the employer's act include the nature of the act oomplairied o£
terms of harm that might reasonably be expected to result for the employee,
whether the act was preceded by consultation and whether there 'was any
sort of reasonable expectation in the employee that the act would not be
committed .
19 Here, as a result of what he had been told. Dr Kelly was entitled to assume
that he would not be named by the Government, at least not without being
given adequate -warning . The change in stance, the failure to inform him of
the change in stance, and the failure to inform him immediately after his
employee.
conli
fidence.
reference to one of the legitimate aims set out in article 8(2) . In particular, it
order to protect the rights and freedoms of others, notably other oivil
servants who might otherwise have been subjected to scrutiny by the media.
8(2) .
s ~Sy) )3 1
respect for private and family life - see eg McGinley and Egan v United
take steps to safeguard his right under aricle 8(1) was that (i) the
the confirmation of his name to the media and (ii) the Government had in
330 at para 31 .
26 Data Protection Act 1998 : Unless an exemption applies (and none does), by
virtue of section 4(2) of the Act the Gove_rnment was obliged to comply
with the data protection principles set out in Schedule 1 to the DPA. The
f-S 3 1 3 1 00 -7 -L
Personal data shall be processed fairly and lawfully and, in particular,
shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met. . .
28 For the reasons given above the disclosure of Dr Kelly's identity, without
Jeremy Gompertz QC
Jason Beer
Jeremy Johnson
16th October 2003