The Hutton Inquiry

LORD HUTTON: Good morning, ladies and gentlemen. Yes, Mr Caldecott.

MR CALDECOTT: Mr Davies, you have given evidence already to the Inquiry. Just some short supplementary questions. First of all, is there any higher authority in the BBC than the Governors?

MR CALDECOTT: Do the Governors also have a distinct role in relation to handling formal complaints?

MR CALDECOTT: I want to show you a very short extract from the letter Mr Campbell wrote to all the Governors on 5th July. BBC/6/11, please. At the bottom of the letter, these two sentences: "I note from press cuttings that the BBC views my complaint as an attack upon the independence of the BBC. I want to assure you that is not the case. I respect the BBC's independence." What was your reaction to that assertion by Mr Campbell?

MR CALDECOTT: Can I just ask you this: were you following the Prime Minister's Official Spokesmen briefings in the run up to your meeting on 6th July?

MR CALDECOTT: I just want to ask you to comment on one, which is the morning briefing on Thursday 26th June at BBC/5/102, please. If we could scroll down just a little to the middle. Do you see a paragraph starting there: "Asked if Downing Street was considering..."?

MR CALDECOTT: It is the first new paragraph on our screen.

MR CALDECOTT: Four lines in this sentence: "Asked if No. 10 had asked for a meeting with the Chairman of the Board of Governors to initiate an internal investigation at the BBC, the PMOS said that what the BBC did internally was a matter for them."

MR CALDECOTT: Would you have any comment to make about that?

MR CALDECOTT: Can I just ask you about a second passage in the paragraph immediately beneath the one we have just looked at? That is the paragraph starting "Questioned" at the top of your screen. The second line in: "We [that is the Government] were simply asking the organisation to say whether they believed that their one anonymous source outweighed the Prime Minister, the Foreign Secretary, the Chairman of the Joint Intelligence Committee, the Security and Intelligence Coordinator, and the heads of the intelligence agencies -- and that if so, whether they would accept they were, in effect, calling all those people liars." Did you in any way respond to that observation by the Prime Minister's Official Spokesman?

MR CALDECOTT: Do you have any view on I think an observation made by Mr Dyke that the BBC could itself have referred the matter to the Programme Complaints Unit of its own initiative?

MR CALDECOTT: Can I just ask you this: your meeting on 6th July; was there anything unusual about the way in which it began?

MR CALDECOTT: Can I ask you briefly to deal with a point arising on your letter to Mr Hoon on 8th July at CAB/1/82? It is really the first line of that letter: "Thank you for today's letter, which I believe you have now released to the press." Can you please tell us your up-to-date understanding as to the point you made there?

MR CALDECOTT: Yes, it is.

MR CALDECOTT: One last question: there has been a suggestion put before that the Governors were too ready to defend management. Can you just give us, very briefly, an indication as to how Governors are appointed and the kind of people they are?

MR CALDECOTT: Thank you very much, Mr Davies.

MR SUMPTION: Mr Davies, before we get on to this particular case I want to ask you about the function of the Governors in general terms. Do you accept that if the Governors are satisfied that a broadcast making serious allegations against third parties was unfair to them it is entirely proper for the Governors to intervene and require a retraction?

MR SUMPTION: Yes, but if the Governors are involved, that is their approach, is it not, that if it was unfair it is proper for them to retract?

MR SUMPTION: Do you accept that is so whether the allegations are made by the BBC or put into the public domain by the BBC?

MR SUMPTION: If the Governors take the view that the reliance on the source for the particular allegations that were broadcast was unfair in all the circumstances, you would expect them to direct a retraction, would you not?

MR SUMPTION: Yes.

LORD HUTTON: May I just ask you on this point: you refer to the distinction between reporting a source and the BBC itself expressing a view. Now, is it correct that most reports from the BBC depend upon sources? May I explain it this way --

LORD HUTTON: But in the distinction you are drawing, are you referring, on the one hand, to a case where a BBC reporter himself makes an inquiry and then gives a report based on his own experience -- for example, Mr Gilligan, I think, referred to a case where he went to interview someone about the sale of weapons, the sale of which, I think, were banned, but the manager of the company or some person in the company in fact agreed to sell them to him. I can understand there that that is a report directly from the BBC; but apart from those cases, are most or indeed virtually all of the reports delivered by the BBC based on information coming from some third party?

LORD HUTTON: Yes.

LORD HUTTON: I see.

LORD HUTTON: Yes.

LORD HUTTON: I see.

LORD HUTTON: Thank you very much.

MR SUMPTION: Mr Davies, you mentioned, in answer to my question, the point that the Governors do not want to duplicate the judgment of the executives. No doubt in investigating matters that come before them the Governors will depend on the assistance of senior executives to provide them with information, but you will surely agree that their role is to form an independent judgment and not simply to act as amplifiers for views which the BBC staff have already formed?

MR SUMPTION: Let us look at what did happen in this case. You have given evidence at phase 1 that it would not have been possible for the BBC Governors to investigate the accuracy of Mr Gilligan's report. Did you mean by that that the Governors had no means of deciding whether the dossier had actually been sexed up or not and, if so, by whom?

MR SUMPTION: Let us look at what they were in a position to look into, because I think your last answer suggests that there may be some common ground on that. The Governors were in a position, were they not, to consider whether the journalist had a proper support from his own source for what he had broadcast. They could consider that, could they not?

MR SUMPTION: In your phase 1 evidence you said that the BBC had to be absolutely clear -- these are your words -- that they were reporting the words of the source. That is the point that the Governors could have investigated, is it not?

MR SUMPTION: The Governors were in a position, were they not, to consider whether the status of the source was such that he could be expected to know the facts?

MR SUMPTION: They could have been told what the status of the source was without being told his name.

MR SUMPTION: Are you suggesting that these eminent Governors, whose qualifications you described a few minutes ago, were people who although they embodied the BBC cannot be trusted with that information?

MR SUMPTION: It must be because somebody cannot be trusted.

MR SUMPTION: Are you suggesting it would not have been appropriate to tell the Governors that the source was not a member of the Intelligence Services?

MR SUMPTION: I did not ask what would be important to you. On the footing that the Governors have to make their own mind up, are you saying it was inappropriate for them to be told one fact of some importance, namely that this source was not a member of the Intelligence Services?

MR SUMPTION: Did they think it was appropriate to form a view of their own on that question or did they simply think that it was appropriate to take the executives' view at face value?

MR SUMPTION: I see. So if you are investigating, if you are looking into a complaint by someone else that the executives have not formed an appropriate view on that, the BBC Governors' function, on your evidence, is simply to take over that view from the executives; is that right?

MR SUMPTION: The Governors asked whether the executives were happy with the source, did they, not whether they themselves should be?

MR SUMPTION: You know perfectly well there is a great deal that the Governors could have done with more information, even if that information did not include the actual name of the source, do you not?

MR SUMPTION: Would it be fair to say that both Mr Sambrook and Mr Dyke felt very strongly about this issue?

MR SUMPTION: I am going to press you on your view on whether they felt strongly, because you spoke to them. Did they feel strongly about this issue or not?

MR SUMPTION: Did they feel strongly that the BBC had acted entirely appropriately both in making the original broadcasts and in standing by those broadcasts?

MR SUMPTION: That is part of it. Just answer the question as asked.

MR SUMPTION: Were you aware on the morning of the Governors' meeting that Mr Sambrook, in an interview published in The Observer, had said that the BBC fully supported Mr Gilligan. Were you aware of that?

MR SUMPTION: I see. That is a matter of record. We can look at it in due course. On 1st July Mr Sambrook had told the FAC that if the FAC unanimously decided on concrete evidence that part of the story was wrong, the BBC would retract.

MR SUMPTION: Now, you knew, did you not, that the FAC report was very likely to have at least some opposition dissentions?

MR SUMPTION: I am asking you what you knew.

MR SUMPTION: Right. You knew, did you not --

MR SUMPTION: You knew also that the Government did not propose to put drafts of the dossier or the oral evidence of the Chairman of the Joint Intelligence Committee before the FAC because they regarded that as a matter for the ISC?

MR SUMPTION: Yes. So the concession that the BBC would retract if there was a unanimous report based on concrete evidence was a fairly cheap concession to make, was it not?

MR SUMPTION: Can we have BBC/14/86, please? I want to turn to your own personal position at the time you called the Governors' meeting; and the document that has just come up is an e-mail a bit before that, on 29th June, addressed by you to the Governors. Do you see that?

MR SUMPTION: Now --

MR SUMPTION: 29th June.

MR SUMPTION: After the first paragraph you say: "Having said that, I think it is unknowable whether the FAC will rule in the BBC's favour on the 45 minutes claim in the September dossier. They might do so, but it is also possible that they will say that the truth is confused, since early drafts within the intelligence community did not include the 45 minute claim, while later ones did. Or they may conceivably just conclude that the first draft which was seen by Mr Campbell did indeed include the 45 minutes claim, as he has always argued. The latter form of judgment would be problematic, especially if Campbell then files a formal complaint which goes for adjudication either to the Governors or the BBC." The reason why that would be problematic was, presumably, that it would be problematic for the BBC if the FAC appeared to endorse some of the complaints that Mr Campbell had been voicing?

MR SUMPTION: If you look down to the next paragraph of this e-mail, you say: "Some may therefore argue that there could be advantage for the BBC in reaching a settlement with No. 10 which both sides can live with, perhaps in advance of, or shortly after, the publication of the FAC report. However, I remain firmly of the view that, in the big picture sense, it is absolutely critical for the BBC to emerge from this row without being seen to buckle in the face of Government pressure. If the BBC allows itself to be bullied by this sort of behaviour from No. 10, I believe that this could fatally damage the trust which the public places in us. Furthermore, I think we should remember that the main historic role of the Governors has been to shield the BBC from this sort of attempt to exert political muscle over our news output. This, it seems to me, really is a moment for the Governors to stand up and be counted. So I hope you will agree that whatever emerges about the precise details of the 45 minutes claim, we must not give any ground which threatens the fundamental independence of our news output, or suggests that the Governors have buckled to Government pressure." Why did you say that should be the line "whatever details emerge about the precise details of the 45 minutes claim"?

MR SUMPTION: What you were saying was that whatever details might emerge about the precise facts about the 45 minutes claim, (1) there should be no compromise of the kind you refer to at the beginning of that paragraph and (2) the Governors must not give way but must be seen to support the management.

MR SUMPTION: You were so concerned about creating the outward appearance of succumbing to political pressure that you were urging the Governors that they should not give an inch whatever a further investigation of the facts might show. Is that not the position?

MR SUMPTION: Can we have BBC/14/96, please? Perhaps we could look at the next page, because what I am interested in is your e-mail to the Governors referring to the meeting which you had just called for the 6th, which is set out at the end of the e-mail from Dame Pauline Neville-Jones. What you say here is you called a meeting, it is "an unusually important moment in our careers as Governors". You say: "I do not think that we should seek to take a view during this meeting on whether the Gilligan story was accurate. This is not a question on which we need to take responsibility. Instead, I think we should concentrate on the following three questions." Number 1 concerns bias in the previous reporting of the war. I am not going into that. "2. Mr Campbell has also alleged that the Today Programme breached the BBC's producers' guidelines. I believe that we should investigate this allegation, which has been repeatedly made in public, without waiting for an official complaint ... "3. We should also consider whether to initiate investigations into other matters of concern. These could include the rules under which BBC journalists ... [publish elsewhere]." Would you accept one of the purposes of that e-mail was to discourage the Governors from investigating the accuracy of Mr Gilligan's reports?

MR SUMPTION: In any sense, they were not going to be in a position, without the information, even to investigate the question whether the report was properly supported by the source, were they?

MR SUMPTION: I understand the difference you make between the two forms of accuracy. But your position was that the Governors were not going to be investigating either of them, was it not?

MR SUMPTION: Well, were you aware, at the time of the meeting, that Mr Sambrook had not examined Mr Gilligan's notes at the time of writing his letter on 27th June?

MR SUMPTION: Were you aware he had examined them since writing that letter?

MR SUMPTION: Were you aware the notes did not support the most serious of the allegations, namely Mr Gilligan's source had accused the Government of putting material into the dossier knowing it was probably wrong?

MR SUMPTION: So Mr Sambrook had looked at the notes but had not picked up the fact that the most serious of the allegations was not reflected in the note; that is your evidence, as I understand it, indeed it is Mr Sambrook's.

MR SUMPTION: The notes were not, of course, put before the Governors even in redacted form, were they?

MR SUMPTION: Were you aware that since Mr Gilligan's original broadcast, statements had been made both by Mr Gilligan and himself that the source was in the Intelligence Services, but that by 6th July Mr Sambrook knew that that was not so?

MR SUMPTION: Do you not think it should have come across somebody's radar screen if the Governors were going to be properly informed about this?

MR SUMPTION: He did not, did he? So the Governors did not know that a part of what had been said about the status of the source on the BBC was known to the Director of News to be wrong; and they had no report on the extent to which Mr Gilligan's notes supported what he had broadcast. Those two points are factually correct, are they not?

MR SUMPTION: In other words, the answer to my question is: no, they did not know either of those two facts and nobody told them.

MR SUMPTION: We know that Mr Gilligan claims that he did, in fact, take notes during his meeting with Dr Kelly. So whatever the general position may be, that does not seem to be a relevant consideration in this case.

MR SUMPTION: Let me take you up on what you said a moment ago, that the Governors were told that Mr Gilligan's notes supported the broadcast. As I understand what you said slightly earlier than that, they were told that even though Mr Sambrook had not examined the notes carefully enough to pick up the point that the 6.07 allegations were not reflected there.

MR SUMPTION: Was nobody interested in the question whether the notes substantiated the suggestion broadcast by Mr Gilligan that the Government had put material into the dossier knowing that it was probably wrong? Was no one interested in that question?

MR SUMPTION: I do not accept that, Mr Davies, but I am not going to go through that point with you. That too is a matter of record. But the fact is if Mr Sambrook had carefully gone through the notes and compared them with the transcript of what Mr Gilligan had said, it would have been absolutely apparent to him what all BBC witnesses have acknowledged so far in this Inquiry, namely that Mr Gilligan had gone too far, would it not?

MR SUMPTION: Are you saying that whatever Mr Gilligan said about things that were not in his notes would have been taken at face value by the Governors without further investigation?

MR SUMPTION: By the PCU then.

MR SUMPTION: Who decided what information should be put before the Governors at this meeting?

MR SUMPTION: Who is that?

MR SUMPTION: Did the Secretary of the BBC decide for himself what information, apart from Mr Campbell's information, should be put before the Governors? Were you consulted on the point?

MR SUMPTION: He did tell you what was going to be put out?

MR SUMPTION: You would have been satisfied that was the right information to go before the Governors, would you?

MR SUMPTION: How were the Governors going to form an independent view of the question whether Mr Gilligan had gone further than his source and the question whether the source had been accurately described without having the information before them that was, in fact, in Mr Sambrook's head as this meeting took place?

MR SUMPTION: Mr Davies, I quite understand that the Governors' board is a supervisory and, in some respects, an investigatory body. But surely the problem here was that the Governors did in fact duplicate what the executives had done instead of forming a view of their own which, if they had been properly informed, might have been very different?

MR SUMPTION: They were put in a position where, for sheer want of information on the point, they had no alternative but to accept the views of the executives although those executives had dug themselves firmly into a position, is that not right?

MR SUMPTION: Would you turn to BBC/6/107, please? This is part of the official minute of the meeting in question. After the executives are drawn it says, second paragraph from the top of the page: "Following an account from Mark Damazer about how the '45 minutes claim' had been disputed by the Government since the broadcast, and a discussion by Governors about the accuracy of the report, Gavyn Davies reminded the Board that it was not a matter for them." So is the position that when the Governors did start discussing the accuracy of the report you intervened to stop them?

MR SUMPTION: I see. You could not, of course, without the information.

MR SUMPTION: There was a discussion, we know, at the meeting about whether proper notice should have been given to No. 10 in advance. There is just one aspect of that discussion that I want to ask you about. Did Mr Dyke say, in the course of the discussion, that if the Today Programme had consulted No. 10 in advance and reported No. 10's denial that would have weakened the impact of the broadcast?

MR SUMPTION: They are at least as likely to record exactly what is said as the smooth minute produced afterwards, are they not?

MR SUMPTION: Was it the Governors' view that notice should have been given to No. 10 in advance?

MR SUMPTION: Was it the majority view?

MR SUMPTION: Yes, you watered it down in the statement because you did not wish to be seen to let down the executives. That was the reason for that, was it not?

MR SUMPTION: Did a number of the Governors express misgivings about the propriety of Mr Gilligan writing his article in the Mail on Sunday under the byline of a BBC correspondent?

MR SUMPTION: Was their conclusion on that watered down in the press release as well?

MR SUMPTION: Mr Davies, what you said is that you thought that people were concerned about The Mail on Sunday article. "Mr Gilligan", you said, "got us into trouble with The Mail on Sunday". And Mr Dyke's response to that, according to the shorthand note is, "If you say that tonight, you are disowning Andrew Gilligan".

MR SUMPTION: Yes. What you did was to water down the point by simply saying the Governors would look into the matter, because Mr Dyke was concerned that you should say absolutely nothing that would seem to be criticising Mr Gilligan.

MR SUMPTION: What do you say you say?

MR SUMPTION: Could we look at BBC/6/111, please? Can we take it, from the second bullet point on this press release, that the Governors were, in fact, under the impression that this was a senior intelligence source and that was the reason why they rejected the suggestion that there should have been corroboration from some other source?

MR SUMPTION: That is what it says, is it not?

MR SUMPTION: Ah, that is the difference, is it?

MR SUMPTION: Was it true, or not, that the reason why the Board rejected the suggestion that there should have been corroborative evidence was that that was impractical in the case of a senior intelligence source?

MR SUMPTION: Was it true that that was the reason why they rejected the allegation?

MR SUMPTION: The allegation was that the producers' guidelines had been broken because you should have had a corroborative source. Now, what this second bullet point is saying is that that complaint was rejected because it was not practical to obtain corroboration for intelligence sources.

MR SUMPTION: Mr Davies, you have misunderstood my question.

MR SUMPTION: I will put it once more. I will try to put it more clearly. One of the matters before the Governors was the question whether the BBC should have obtained corroborative material from another source. The second bullet point in this press release says that that is not invariably necessary and was not appropriate in this case because the source was a senior intelligence source. Do you agree that that was the Governors' decision on that particular point?

MR SUMPTION: So you do not accept that the second bullet point actually gives a fair account of the Governors' own view of how matters proceeded?

MR SUMPTION: Thank you.

MR DINGEMANS: Mr Davies, the Governors as a supreme authority of the BBC, they accept ultimate responsibility for the actions of the BBC in this matter, do they not?

MR DINGEMANS: And you also accept, do you not, proper responsibility for the BBC's handling of Mr Campbell's complaints?

MR DINGEMANS: Can I just deal with the Governors' investigation of this matter? Accepting the points you make, that you could not go to the Chairman of the JIC and look at the draft dossiers --

MR DINGEMANS: -- were there not a number of things that might have put you on notice that a thorough investigation was needed? Perhaps I can just try them out with you.

MR DINGEMANS: First of all, the Governors had been told that this was a story that was going to be "chatter in the air" rather than the lead item on the Today broadcast. That either suggests a stunning lack of insight into the story which was proposed to be broadcast or the broadcast had gone beyond that which had been originally proposed.

MR DINGEMANS: The second aspect that might have put you on notice --

MR DINGEMANS: The second aspect was Susan Watts' story, which you say you looked at carefully.

MR DINGEMANS: Which crucially omits the point that the Government had at least by that stage identified as objectionable, namely that the 45 minutes point was probably wrong.

MR DINGEMANS: Mr Gilligan's own evidence to the Foreign Affairs Committee, where critically he does not repeat what he says the source had told him on the 6.07 broadcast; was that not picked up?

MR DINGEMANS: Did you share it with the other Governors?

MR DINGEMANS: You have said you were not able to have the original notes before you. You say that notes are not that important. It would have been possible, would it not, to have called for redacted copies of the notes?

MR DINGEMANS: If those points --

LORD HUTTON: Did you want to add something? I thought your reply was possibly cut short.

MR DINGEMANS: Accepting you had not made those points, do you not think the Governors ought to have called for the redacted notes?

MR DINGEMANS: You had called a special meeting to consider this allegation alone?

MR DINGEMANS: One other thing you could have done is ask for the draft cues, which I gather are not normally kept for a programme. We have now been supplied those. Can I take you to BBC/31/2?

MR DINGEMANS: This as I understand is what is drafted, as it were, for the 6.07 programme. If you look at it, it says "Draft Cue": "Doubts about the reliability of Tony Blair's assertion last September that Iraq could deploy WMD within 45 minutes have been confirmed by this programme." Then this: "What do they say: "Evidence that experts felt their work was being misrepresented to justify an attack on Iraq to fit in with the US led timetable for overthrowing Saddam Hussein." That may be important because Dr Kelly was certainly an expert, and indeed that then puts the whole broadcast into context. Go down the page to the final answer: "No, it was real information. But it was included in the dossier against our wishes because it wasn't reliable." If it is against the wishes of experts, we have heard from Dr Jones, we have heard from Mr A, they are experts, they were not happy, but that would have put the broadcast in a proper context, would it not?

MR DINGEMANS: Join the club.

MR DINGEMANS: Indeed. It also makes clear who "our wishes" were, expert wishes.

MR DINGEMANS: Tell me if I am wrong.

MR DINGEMANS: Of course, I mean, in fact, that would have been absolutely correct, as far as we now know, with the evidence of Dr Jones and Mr A. But it was never correct, was it, to broadcast against the wishes of Intelligence Services, implying JIC?

MR DINGEMANS: Finally, because my time is more limited than others, BBC/14/86. You were shown this by Mr Sumption. He was putting to you that it showed a state of mind whereby the Governors were going to avoid buckling under pressure. You were shown part of this e-mail, if we scroll down "avoid buckling under pressure", et cetera.

MR DINGEMANS: Is this right, you, at the BBC, felt you could not back down partly because Mr Campbell had accused you of lying, at the Foreign Affairs Committee in his evidence of 25th June?

MR DINGEMANS: So that, at least, was partly in the Governors' minds. We have heard in the Government's mind they considered this a very serious attack on their integrity and tantamount to a charge of dishonesty. Was this a case where both sides had, as it were, put common sense and perspective on the side when they had engaged in this dispute?

MR DINGEMANS: Thank you, my Lord.

LORD HUTTON: Any re-examination? MR CALDECOTT: No re-examination, thank you my Lord.

LORD HUTTON: Mr Davies you have referred in your evidence this morning to the complaints procedure. Now, I think Mr Dyke said in his evidence that the complaints procedure, to work its way through to a conclusion, would normally take a matter of months. Do you agree with that?

LORD HUTTON: Yes, I see. Thank you very much, Mr Davies.

MR DINGEMANS: Counsel for Mr Lamb is going to examine him.

LORD HUTTON: Yes. Yes.

LORD HUTTON: Just sit down, Mr Lamb, please.

LORD HUTTON: Yes, Miss Lieven.

MISS LIEVEN: Could you give the Inquiry your full name?

MISS LIEVEN: And your position?

MISS LIEVEN: I think it is correct that you have given evidence to this Inquiry on three previous occasions in part 1.

MISS LIEVEN: I am going to ask you questions on three areas: the system of authorisation for Dr Kelly's press contacts, Dr Kelly's mention to you of the fact he had spoken to Mr Gilligan and Ms Watts, and the actions you took after Dr Kelly's name became public. On the first of those, can you just explain what responsibility you had for Dr Kelly's press contacts?

MISS LIEVEN: To what degree did you consider it acceptable for Dr Kelly to seek authorisation from you after he had spoken to the press, in other words ex post facto authorisation?

MISS LIEVEN: Up until the end of 2002, did you have any difficulty operating the system of authorisation with Dr Kelly?

MISS LIEVEN: When did you become aware that Dr Kelly might be departing from the procedure that you have explained?

LORD HUTTON: Miss Lieven, sorry to interrupt you. We give the stenographers a break and I just have to choose an appropriate time. I think this might be it when you are going on to a slightly new subject. So I will rise for five minutes.

MISS LIEVEN: Mr Lamb, at what point did you become aware that Dr Kelly might be departing from the procedure that you have just outlined?

MISS LIEVEN: In respect of the article on 13th April in the Sunday Times, when that was brought to your attention by the press office what steps did you take?

MISS LIEVEN: In the light of your knowledge of events at the time, how confident could you be that Dr Kelly knew he had needed authorisation to speak to the media?

MISS LIEVEN: What was your understanding of the position on handling press contacts that might involve areas covered or led by the MoD, the Ministry of Defence?

MISS LIEVEN: Can I move on to the second topic I wish to cover. When did you first become aware that Dr Kelly had spoken to Mr Gilligan and Ms Watts?

MISS LIEVEN: Why did you not follow it up at the time that Dr Kelly made those comments?

MISS LIEVEN: Can I come on to the final area, actions you took once Dr Kelly's name became public. Did you try to contact him once his name came into the public domain?

MISS LIEVEN: Did you succeed in speaking to him on 14th July?

MISS LIEVEN: What was the gist of the conversation you had with him on the 14th?

LORD HUTTON: Sorry, was the request to come in and see him just really as a gesture of friendship and to give him support?

MISS LIEVEN: Did you try to contact him after the hearing on the following days?

MISS LIEVEN: Thank you very much, Mr Lamb.

LORD HUTTON: Thank you very much. Mr Gompertz.

MR GOMPERTZ: Do you remember, Mr Lamb, that you gave evidence before the Inquiry on, I think, 14th August?

MR GOMPERTZ: Do you also recollect that the very next day, the 15th August, I believe you made a statement to the Thames Valley Police?

MR GOMPERTZ: Is that right?

MR GOMPERTZ: Can I just take you to a couple of passages in that? If you want to refer to it by all means do. TVP/10/53 is the reference. If you have a hard copy in front of you, I am looking at page 6 of 8 in my copy. What you say there was that Dr Kelly was evidently nervous and very tense before his appearance in front of the Foreign Affairs Committee. Do you have that?

MR GOMPERTZ: This was understandable and perfectly normal. At the end of that paragraph you say: "He would have been distressed by the extent and nature of the media coverage." Right?

MR GOMPERTZ: That accords with your knowledge of the man?

MR GOMPERTZ: Yes. If you turn back two pages, to page 4 of that statement, in the last paragraph, it is TVP/10/51. In the second line you say that it was evident that Dr Kelly wanted to talk when you called him.

MR GOMPERTZ: Yes. The next page, page 5, at the bottom, TVP/10/52: "From the tenor of our conversation it was evidence that he felt under pressure." You were doing your best, as someone who knew him quite well, to reassure him?

MR GOMPERTZ: Well, that is very understandable. Do you know whether anybody else ever did what you did?

MR GOMPERTZ: Hmm.

MR GOMPERTZ: Was that on the telephone or face to face?

MR GOMPERTZ: We will hear from Dr Wells shortly. Do you know if anybody, to your knowledge, actually sat down with him and talked the whole thing through?

MR GOMPERTZ: You cannot speak for the MoD?

MR GOMPERTZ: Let me go on to the other matters you have given evidence about. If I may say so, Mr Lamb, it would appear that there is a change of emphasis in your evidence today as compared with your previous appearance before the Tribunal. Would that be fair?

MR GOMPERTZ: Yes.

MR GOMPERTZ: When he came to you, did you ever, on any occasion, say to him: this is not a matter for me, you go to the MoD and deal with them?

MR GOMPERTZ: You do not recollect any occasion when that, in fact, happened?

MR GOMPERTZ: I do not want to interrupt you but I only have limited time, you understand, Mr Lamb.

MR GOMPERTZ: Would this be right: it would be difficult for Dr Kelly, quite apart from yourself, to know precisely to which body he should be making application for permission to speak to the media?

MR GOMPERTZ: No?

MR GOMPERTZ: Could I ask you to look at TVP/10/53, page 6 of your statement to the police, where, at the bottom of the page, page 6 of the statement you were looking at, four lines up you say this: "Prior to 2003 in my experience he had been careful to ensure that the Foreign Office was aware, most often in advance, of any media interviews." The obvious inference from that statement is that there were occasions when that permission or informing process took place ex post facto. Is that fair?

MR GOMPERTZ: Can I invite you to recollect your evidence on a previous occasion? You said, in answer to Lord Hutton, that in theory and properly he, Dr Kelly, should have approached the press office about each and every request. I am looking at page 102 if you have it in front of you. I am sorry, I do not have a copy to show you. In practice, you then said, as I think we all know: "... once a journalist has a number they will tend to pursue that person or ring that person without -- off the cuff. Dr Kelly worked from home, to a very large extent; and so that meant that often, I presume, he would receive calls at home having exchanged a card with a journalist. And certainly there were instances where, for reasons I perfectly understand, he had no opportunity to seek prior authorisation or clearance. But in my experience he was also very scrupulous about informing us after the event. That in itself was helpful, very helpful in the event that something arose following that particular interview --" Is that a fair summary?

MR GOMPERTZ: Thank you. Is it a fair summary of what happened?

MR GOMPERTZ: The words you use there, "self-discipline" and "judgment", are an echo from a document I think you prepared, CAB/1/115. If we can scroll down to paragraph 4 -- having described the system, I am not going to go through it because we have looked at this document before, but you say this: "This system, which ultimately relied on self-discipline and judgment on all sides, worked well and provided the media with expert background briefing and led to no embarrassments for HMG over the period 2000-2002." That is fair, is it?

MR GOMPERTZ: Thank you very much indeed. Can you just look back to paragraph 2, the same document: "There were obviously also instances where he was contacted first by the journalist or researcher but he was, as far as I was aware, scrupulous about informing FCO in order to seek prior agreement and discuss areas on which he should not be drawn."

MR GOMPERTZ: Thank you. Last topic. The conversation, brief as it was, that he had with you about his contact with Mr Gilligan. Can I just ask you this: he would come as a matter of course and speak to you in your office, would he not?

MR GOMPERTZ: Yes. You told us last time that you would make time to sit down with him and discuss things on a fairly informal basis, "We would sit at the table and discuss them".

MR GOMPERTZ: That would be the norm, would it?

MR GOMPERTZ: On this occasion when he mentioned Mr Gilligan you were extremely busy?

MR GOMPERTZ: So there was not the opportunity for him to sit down with you and discuss the matter, was there?

MR GOMPERTZ: He could have done anything -- I am sorry to interrupt you -- but you were his normal point of contact on these matters?

MR GOMPERTZ: For all you knew, had you not been so busy he might well have sat down and given you a full report there and then?

MR GOMPERTZ: Did this report make you sit up and take notice?

MR GOMPERTZ: Yes.

MR GOMPERTZ: So did you follow it up?

MR GOMPERTZ: Did you follow it up?

MR GOMPERTZ: You say "immediately". You did not follow it up at all, did you?

MR GOMPERTZ: So you did not follow it up with Dr Kelly?

MR GOMPERTZ: Thank you, Mr Lamb. MISS LIEVEN: No re-examination.

LORD HUTTON: No re-examination. Thank you very much indeed, Mr Lamb.

MR DINGEMANS: Dr Wells, please.

MR DINGEMANS: Can you give his Lordship your full name?

MR DINGEMANS: Have you given evidence before?

MR DINGEMANS: Can I just ask you a couple of questions, if I may?

MR DINGEMANS: Last time you were asked about some of the telephone contacts you had had with Dr Kelly but obviously --

MR DINGEMANS: -- at that stage you had not had available all the records, either Dr Kelly's records or indeed yours. Have you now had a chance to look through those records?

MR DINGEMANS: Can I take you to a document which is MoD/45/2, where I think you have helpfully listed the calls. Is this the product of going through all those logs?

MR DINGEMANS: This shows DK mobile, BW office; I imagine that is David Kelly's mobile to Bryan Wells' office, is it?

MR DINGEMANS: Yes. Those are the calls that you have been able to identify on the 9th, 10th, 11th and 13th July?

MR DINGEMANS: Can I then just deal with some specific calls? The first is on 9th July when you contacted Dr Kelly after he had seen Mr Rufford. We can see on 9th July various calls that are made.

MR DINGEMANS: I think when you gave evidence first you recollected that it was some time in the afternoon.

MR DINGEMANS: What were you discussing earlier on during the day, on 9th July?

MR DINGEMANS: So work calls about recruitment, et cetera?

MR DINGEMANS: Then --

LORD HUTTON: So the last of those calls on other matters would have been about 15.29, is that right?

MR DINGEMANS: Then at 7.03 we see a call from your mobile to Dr Kelly's mobile, is that right?

MR DINGEMANS: Right. Where were you at the time you were contacted?

MR DINGEMANS: So you had been in a tunnel or whatever?

MR DINGEMANS: You speak to him at 7 o'clock and what does he say?

MR DINGEMANS: What was the message?

MR DINGEMANS: Were you aware before that telephone call that there was a proposal that Dr Kelly's name should be confirmed by the press office?

MR DINGEMANS: Was it before or after?

MR DINGEMANS: Before? So someone had told you before that --

MR DINGEMANS: Had you told Dr Kelly that before?

MR DINGEMANS: Yes.

MR DINGEMANS: But you did not tell him anything further in relation to that?

LORD HUTTON: Do you remember any more about the discussion about the press statement having been issued on the previous evening? Have you any recollection of the tenor of your conversation with Dr Kelly?

MR DINGEMANS: Did you discuss or were you aware at that stage, on the Wednesday morning, of the defensive Q and A material?

MR DINGEMANS: So you obviously could not have discussed that with Dr Kelly.

MR DINGEMANS: When you rang Dr Kelly on his mobile, from your mobile to his mobile at 7.03, what did you say?

MR DINGEMANS: That duration appears only to be 46 seconds.

MR DINGEMANS: At 19.03 and 19.09 it is that you had this conversation?

LORD HUTTON: Give me just a moment, Mr Dingemans. So you rang Dr Kelly from the train; is that right?

LORD HUTTON: After you had received this message from Dominic Wilson to pass on that the name had been confirmed. Now, do you think that, in that call, you conveyed that to Dr Kelly? It seems to have been a very brief call. Do you think you actually said to him and he understood that the name had been confirmed to the press?

LORD HUTTON: He rang you back, then, at 19.09; is that right?

LORD HUTTON: Yes. I see.

MR DINGEMANS: Was anything said about Mr Rufford, at that stage?

LORD HUTTON: Now, when you told Dr Kelly at 7.03 pm that his name had been confirmed to the press, what was his response to that? What was his reaction? I appreciate it is a very brief call and probably not a very good line.

MR DINGEMANS: When had he accepted that?

MR DINGEMANS: Yes. But Dr Wells, is there not a bit of a difference between a friend of yours privately knowing your views, recognising some of your views expressed by someone else, and actually your name being confirmed to the press by the MoD?

MR DINGEMANS: On the afternoon of the 11th?

MR DINGEMANS: He said that on the 7th, did he?

MR DINGEMANS: It does not appear in your notes.

MR DINGEMANS: We have been through your recollections and set them against notes before.

MR DINGEMANS: How clear is your recollection?

MR DINGEMANS: Was that at 7.03 when you told him his name had come out?

MR DINGEMANS: What was the critical information you say you gave him at 7.03 and 7.09?

MR DINGEMANS: Then there is another call at 7.54 from your mobile to his mobile. Why is that?

MR DINGEMANS: What did he say at that stage?

MR DINGEMANS: Mrs Kelly has told us, you have obviously seen her evidence, that Dr Kelly received a call -- whether he received a call or made the call, perhaps not much turns on that -- but that after that he then rushed into the house with Mrs Kelly, they had 10 minutes to pack and disappeared off to Weston-Super-Mare which, if your conversation with Mr Rufford is right at being 7.54, suggests he did not know at 7 o'clock or just past 7 that his name had been confirmed. You say it was a bad line. We have all made calls from trains with people listening in, it is dreadful.

MR DINGEMANS: Do you think you managed to get the message across?

MR DINGEMANS: That is the 9th July --

LORD HUTTON: Sorry, may I just ask you: when you rang, when you were off the train, just be kind enough to state again what was the reason for that call?

LORD HUTTON: Had you mentioned to him before about making preparations to go?

LORD HUTTON: So that was in the earlier conversation, either at 7.03 or 7.09, you suggested that he get in touch with the press office?

LORD HUTTON: Yes, I see. Thank you.

MR DINGEMANS: On 11th July we can see two longer calls at 10 o'clock.

MR DINGEMANS: 5.59, and at 17.56 we can see 9 minutes 14. Can you relate that to your earlier evidence about telephone conversations?

MR DINGEMANS: What did he say about the Foreign Affairs Committee?

MR DINGEMANS: But you got the impression he was not particularly happy about that prospect?

MR DINGEMANS: Did he repeat his request that he should have a colleague in a subsequent telephone conversation?

MR DINGEMANS: Can you remember what the other shorter calls were, none of which seems to get over a minute?

MR DINGEMANS: Were any discussions had about who would accompany Dr Kelly?

MR DINGEMANS: Did he have any clear understanding of what he was going to do before the Foreign Affairs Committee, at that stage?

MR DINGEMANS: So no-one could take it any further forward.

MR DINGEMANS: I think we see that in the first paragraph at MoD/1/83, the Secretary of State asking that he be accompanied by a colleague. He was not accompanied by a colleague. How did that come about?

LORD HUTTON: I mean, you have presumably first raised that point with the Clerk. You say the Clerk told him if he had a colleague, but did the Clerk think of that himself or was it because you asked him about it?

LORD HUTTON: Yes, I see. Thank you very much. Yes.

MR DINGEMANS: Was anyone keen to sit with Dr Kelly and be asked questions?

MR DINGEMANS: Did you discuss them at the end?

MR DINGEMANS: Was any pressure put on him not to ask for a colleague?

MR DINGEMANS: By any others?

MR DINGEMANS: I have asked you about the Q and A material. You have already in the past, I think, given evidence about how you say Dr Kelly was dealing with the matter, I will not revisit that, if I may. Can I just deal with the question about what, if anything, was said to Dr Kelly about pension, continued employment and security clearance?

MR DINGEMANS: I think there is another aspect of your evidence that you wanted to revisit. When you were giving evidence last time you were asked about the meeting on 4th July. I asked you this: "Question: So when Mr Hatfield said to Dr Kelly: you might be named, you told us before you did not make any comment when Mr Hatfield had put a comment to Dr Kelly, did you make any comment at this stage? "Answer: I did not. "Question: And what did Dr Kelly do? "Answer: He acknowledged that. He did not, to my recollection, express any -- he certainly expressed in words no discomfort with that, and I do not recall any body language that expressed discomfort." Is there anything you want to say in relation to that?

MR DINGEMANS: Which you attended?

MR DINGEMANS: Not discussed at all?

MR DINGEMANS: On 4th July, what was said about the press statement?

MR DINGEMANS: If I take you to MoD/1/26, this is Mr Hatfield's typed up note of that meeting.

MR DINGEMANS: He says in the third line: "It might become necessary to consider a public statement based on his account..." Is that what you are referring to?

MR DINGEMANS: But that was not going to name or identify Dr Kelly.

MR DINGEMANS: On 7th July, was Dr Kelly told that his name was going to be given out in any press statement?

MR DINGEMANS: Can I take you to MoD/1/50, paragraph 19?

MR DINGEMANS: Your note: "Hatfield said that it was likely that the department would need to make some public statement on Kelly's involvement with Gilligan. He passed Kelly a draft press release ..."

MR DINGEMANS: We have seen that at TVP/3/238.

MR DINGEMANS: "Hatfield said that although Kelly was not named in the press release his identity may become known in due course. Kelly replied that he acknowledged this: in his letter of 30 June he had said that a friend at [Chatham House as we now know it to be] had alerted him to the possibility of his being considered as Gilligan's source." That is what Dr Kelly said in response, was it?

MR DINGEMANS: Here, on 7th July, and after this he goes off back to RAF Honnington, he is there on the day on 8th July --

MR DINGEMANS: -- has a conversation with Kate Wilson in the evening who says something about alternative accommodation in a conversation lasting a minute --

MR DINGEMANS: -- then nothing appears to be said until 7 o'clock on the following evening, 9th July, in your conversation you had with him.

MR DINGEMANS: What he appears on 7th July to say is this: yes, I know that my name might come out, a friend of mine recognised part of my evidence --

MR DINGEMANS: -- from Andrew Gilligan's evidence. But, I mean, that is really quite different, is it not, from your employer confirming your name and having decided that your name should be confirmed?

MR DINGEMANS: First of all, do you accept it is different or not? You may not accept that it is different.

MR DINGEMANS: And this is fair, is it not: at no point did anyone discuss with Dr Kelly the mechanics of his name emerging?

MR DINGEMANS: We now do.

MR DINGEMANS: And this is fair, is it not: at no point did anyone discuss with Dr Kelly the mechanics by which his name might emerge?

LORD HUTTON: Could I just go back a moment: you said that there were various qualifiers that have been used with reference to his name coming out. Do you mean by that words such as "may" were used, "might", words such as "might"? What did you just mean by the word "qualifiers"?

LORD HUTTON: That is what I wanted to know. By "qualifiers" you mean the word "may" or "might" or something of that nature?

LORD HUTTON: I interrupted you. Was there anything else you wanted to add? You say the conversation, the exchange went round several times.

LORD HUTTON: Yes.

MR DINGEMANS: Finally, can I just take you to some typed up documents? MoD/45/16. I think this is a typed up note of your meeting of 7th July; is that right?

MR DINGEMANS: We can see: "H [Hatfield] -- number of things pursue. BBC defending G [Gilligan]. FAC suggest follow up G's [Gilligan's] contact(s). "Therefore: (i) Follow-up discrepancies in G's [Gilligan's] account [and] DK's. "(Is there a 2nd?) "(ii) MoD may make statement." If we go all the way down the page there does not appear to be anything else about a statement. Page 17, over the page, nothing, so far as I can see, about a statement. Page 18, this is all about what was said with Mr Gilligan. Page 19, similarly. Page 20, again, all what was said between Dr Kelly and Mr Gilligan. Then we come to page 21, the final bit. Martin Howard asks: "[Has] anybody from BBC tried contact?" David Kelly: "No ... Only personnel probably is Susan Watts (science). Not following up G [Gilligan]." There is no note, in these notes of the final bit of the discussion, which went back to the question of the press statement, is there?

MR DINGEMANS: When did you type up your notes?

MR DINGEMANS: Thank you very much.

LORD HUTTON: Mr Gompertz, I do not want you to feel in any way rushed. It might be better to rise now and resume again at 2 o'clock. MR GOMPERTZ: My Lord, I am very happy with that course, particularly because I very much regret that I have to make a protest. It relates to the schedule of mobile telephone calls made by this witness, which we had not seen until they appeared on the screen. We had no idea of their existence. I understand from Mr Dingemans that they were only supplied by the Ministry of Defence to the Inquiry yesterday evening. They had not reached us. I am completely unprepared to deal with them. We have been supplied with other documents about telephone calls. I find it very surprising that we were not given these as well.

LORD HUTTON: Yes. MR GOMPERTZ: So that I dare say I shall be ready by 2 o'clock but it would indeed be an indulgence if your Lordship would rise now and we can deal with the matter.

LORD HUTTON: Yes, by all means, Mr Gompertz. MR LLOYD-JONES: Before your Lordship rises, may I deal with the timing of the schedule?

LORD HUTTON: Yes. MR LLOYD-JONES: My Lord, those instructing me wrote a letter to the Solicitor to the Inquiry on 15th September asking for assistance in relation to obtaining telephone calls. They received a response on 16th September in which Mr Smith said that: your client's request stills seem to me to be largely irrelevant. A further request on 16th September was made by my instructing solicitors and there was a response on 18th September, explaining the difficulties in obtaining the records. I then took up the matter with Mr Dingemans and it was only in the last two days that these further logs have been provided, so that it was only yesterday that the statement could be prepared and that was supplied to Mr Dingemans' counsel to the Inquiry.

LORD HUTTON: Yes, I see. There have been difficulties on occasions in obtaining documents. A large number of documents have been supplied. There has been a measure of delay as regards a few of them and that gives rise to the sort of difficulties that Mr Gompertz has referred to. But I think the main point is that Mr Gompertz feels that he can ready himself over the luncheon adjournment. MR LLOYD-JONES: Of course, that is the most important thing. But I was anxious your Lordship should know the sequence of events. I am most grateful.

LORD HUTTON: Thank you very much. I will rise now and sit again at 2 o'clock.