The Hutton Inquiry

Written Submissions of the Family

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 :

(1) The hopelessly confused procedures which purported to regulate

the conduct of media activities . In particular, the inapplicability
of those confused procedures to a person:
(a) Who was employed or managed by three bodies; and
(b) Part of whose job was to brief the media.
(2) The intended purpose of the meeting from Dr Kelly's
perspective ;
(3) Given the anticipated purpose of the meeting, the difficulty in
seeking permission from any one person or body;
(4) The fact that permission would almost certainly have been given
had Dr Kelly sought authorisation for his intended meeting with
Andrew Gilligan; and
(5) The fact that Dr Kelly did inform Patrick Lamb of thefact of the
meeting after it had occurred.

3. Each of these matters is examined below.

Hopelessly Confused Procedures / Inapplicability of the Procedures

to Dr Kelly

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.

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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" .

6. When he first gave evidence, on Day 2, Richard Hatfield suggested that

three documents regulated Dr Kelly's contact with the media:
(1) The MoD Personnel Manual [MOD/2/12-15] ;
(2) The DSTL Procedure for Conduct [MOD/2/16-36] ; and
(3) The Civil Service Code of Conduct [MOD/2/37-40] .

7. As to the first of these, the MoD Personnel Manual, Richard Hatfield

suggested that, as Dr Kelly was working for the MoD at the relevant
time, this was the document which governed his relations with the media
[Day 2, page 25, lines 5-7 and Day 20, page 5, line 1] .

8. Interestingly, the Government did not share Richard Hatfield's view at

the end of Part 1 of the Inquiry - in paragraph 11 of its Interim
Submissions [CAB/28/10], the Government did not suggest that the
Personnel Manual regulated Dr Kelly's contacts with the media, relying
instead on the Civil Service Code of Conduct (as to which see paragraph
14 below) and a breach by Dr Kelly of the "terms and conditions of his
employment" (whatever they may be - the family have still not yet seen
a document which purports to set out Dr Kelly's written terms and
conditions of employment) .

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 :

"If you are approached directly about participation in a radio or TV

programme, or about co-operating in the production of a programme
you must report the matter in accordance with the detailed instructions
in Annex M to Chapter 3 . A member of the Defence Information
Division or a duly authorised officer must be present at all press
interviews ." [MOD/2/13] .

10. This guidance is of note for three reasons:

(1) First, it refers readers to Annex M to Chapter 3 for the procedure
by which authorisation should be sought. That guidance (which,
so far as we are aware, has not been scanned in, but which was
disclosed to the Inquiry on or about 9`b September 2003) relates
only to public speaking, lecturing or writing for publication .
(2) Second, even if the guidance in Annex M did regulate the
position, it prescribes an entirely different system of reporting
and authorisation compared with that set out in the DSTL
Procedure for Conduct.
(3) Third, it suggests that a member of the Defence Information
Division or a duly authorised officer must be present at all press
interviews . That requirement was never enforced in the case of
Dr Kelly .

11 . As to the second of these, the DSTL Procedure for Conduct, the

paragraphs relied on by Richard Hatfield were as follows :

"8 . Extra-curricular activities

8.1 General
8 .1 .1 If an employee wishes to carry out any of the following activities
(or similar activities), he / she must seek prior written consent
from his / her line manager:

~-S B 1-3 ' O0 6 g-

 " Media activities

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."

12 . These paragraphs suggest that, before an individual engages in media

activities two conditions must be fulfilled . First, he must seek the
consent of their line manager. Second, that such consent must be given
by the line manager in writina.

13 . These conditions were never applied to Dr Kelly's activities . Despite

what the document says, no witness has given evidence to the Inquiry
that there was any expectation that Dr Kelly would have to seek consent
from his line manager or that such consent had to be given in writing .
The DSTL procedure can, it is submitted, be disregarded as irrelevant.

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.

19. The Inquiry is invited to disregard Mr Hatfield's evidence that it was

these documents, or a combination of them, that regulated DK's contact
with the media.

20 . Instead, there was an informal ad hoc arrangement that had existed for
many years :

(1) According to Dr Shuttleworth, Dr Kelly had been actively

encouraged to speak to the press and had been doing so since
1991 [Day 18, page 124, lines 6-7] .

(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 .

(3) The ad hoc arrangement outlined above was approved by the

MoD when, at a meeting on 9"' August 2002, Dr Wells

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].

(4) The ad hoc arrangement had at its heart pragmatism and

discretion . Pragmatism as to whether Dr Kelly would seek prior
authorisation for a contact with a journalist, and if so, from
whom. Discretion as to whether Dr Kelly would provide
journalists with information when he briefed them. Dr Kelly said
this in his letter of 30'h June 2003: "As my contact details became
known it became inevitable that direct approaches were made and
I used my discretion as [to] whether I provided information"
[MOD/1/19] . The fact that such discretion was conferred on DK
is supported by Patrick Lamb: in a memorandum prepared after
DK's death he said that system " . . .ultimately relied on self-
discipline and judgment on all sides, worked well and provided
the media with expert background briefing" [CAB/1/115] . In
evidence Dr Wells confirmed that this was "a fair reflection of
my understanding of how the system worked" [Day 5, page 20,
lines 2-3] .

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 .

The Intended Purpose of the Meeting from Dr Kelly's Perspective

22. In assessing what Dr Kelly ought to have done before the meeting, the
Inquiry is invited to have regard to (1) the purpose of the meeting from
Dr Kelly's perspective, (2) the absence of any mention of the dossier in
the telephone conversation which led to the meeting and (3) the fact that
it was Andrew Gilligan who introduced the dossier as a topic of
discussion at the meeting .

23 . As to the purpose of the meeting from Dr Kelly's perspective, namely to

speak about Iraq generally, the Inquiry is asked to have regard to the
following :
(1) There is good evidence that Dr Kelly was keen to learn from
anyone about their experiences in Iraq. Andrew Gilligan said
this:
"You know he was always interested in seeing people who had
come from Iraq to, you know, get their impressions" [Day 3, page
18, lines 15-20]

(2) Andrew Gilligan supports the suggestion that the intended

purpose of the meeting was to speak about Iraq in general :

"Q. So the meeting was intended as a general discussion about

Iraq
A. Yes . . . [Day 3, page 18, lines 9-11]

(3) It is also clear that Dr Kelly wanted to know about Andrew

'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]

(4) It is clear that Dr Kelly regarded the meeting, before it occurred,

as essentially a p 'nvate matter (and not a formal briefing, even if
off the record). That this was his view emerges from a document
to which reference has not been made in the course of the
Inquiry, namely Dr Wells' handwritten notes of the meeting of
4' July 2003 [MOD/5/19] . The Inquiry will note that, 5 lines
from the bottom of that page, the following note appears "Did not
notify because regarded as private" . This note did not,
regrettably, get translated into Dr Wells' typewritten notes of the
interview [MOD/1/30 et seq] or those of Richard Hatfield
[MOD/1/24 et seq] .

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.

(2) On Dr Kelly's account, which the Inquiry is invited to accept,

there was no mention of the dossier in this telephone
conversation . Thus, Dr Kelly said in his letter of 30`h June 2003
that he met Andrew Gilligan ". . .to privately discuss his Iraq
experiences and definitely not to discuss the dossier (I would not
have met him had it been the case)" [MOD/1/20] .

(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 :

Had you mentioned that [the dossier] when you contacted

him - I think you told us you contacted him"?
I am not sure, to be honest ; 1 do not recall the content of
that phone conversation" [Day 3, page 82, lines 7-10]

25 . Finally, whichever of Andrew Gilligan's accounts of the meeting one

takes, it is clear that it was Andrew Gilligan who introduced the issue of
the dossier in the course of the meeting.

Difficulty in Seeking Prior Permission

26. Given the fact that there had been no discussion as to the precise topics
of intended discussion at the meeting (instead it being agreed that the
discussion was to be around Andrew Gilligan's experiences in Iraq) it is
difficult to understand from whom and for what Dr Kelly ought to have
sought permission. Was he to approach Dr Wells? Or Mr Lamb? Or the
MoD Press Office? Or the FCO Press Office? Who was the "owner" of
the information about which he was to speak? What was he to ask? Can
I have permission to speak to Andrew Gilligan about his experiences in
Iraq? Indeed, the Inquiry might consider that it was impracticable and
therefore unnecessary for DK to seek permission for such a meeting at
all.

Permission Would Have Been Given

27 . It is clear that, had Dr Kelly sought authorisation for the meeting before
it occurred, such authority would have been given .

28 . Thus, in his minute to Sir Kevin Tebbit of 7`h July 2003 Richard Hatfield
said this:

"Nevertheless, apart from the very unwise comment, he appears to have

'I .fS?y ~ 3 p011

)
 said no more than he or others working for MoD might have said at a
public seminar, such as the one held by IISS last September"
[MOD/1/28]

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) .

Ex Post Facto Reporting

30 . In fact, Dr Kelly did report the fact of his meeting with Patrick Lamb
after it had occurred. He recollects that, in late May 2003, probably
before Andrew Gilligan's broadcast of 29`h May 2003, Dr Kelly reported
the fact that he had spoken to Andrew Gilligan and Susan Watts.
Regrettably, through no fault of his own (he says he was extremely busy
at the time), Patrick Lamb can recall nothing of what Dr Kelly actually
said [Day 5, page 106, line 12 et seq] .

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.

12
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:

(1) First, Andrew Gilligan's account of the chronology and progress

of the meeting is irreconcilable with the physical evidence
retained by his Sharp organiser.
(2) Second, the material generated by Andrew Gilligan in preparation
for the broadcast is in many respects inconsistent with his
account ofthe meeting as given in evidence .
(3) Third, the content of Andrew Gilligan's article in the Mail on
Sunday on lst June 2003 is in many respects inconsistent with his
account of the meeting .
(4) Fourth, the loss of Andrew Gilligan's manuscript note casts
considerable suspicion on the content of the conversation.
(5) Fifth, Andrew Gilligan has proved to be an unreliable historian
on other occasions .

32 . Each of these submissions is examined in detail below.

AG's account of the chronology and progress of the meeting is

irreconcilable with the physical evidence retained by his Sharp
organiser

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.

34 . Although the exercise of undermining the account given above could be

taken much further, the following five irreconcilable points emerge.

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:

"We'd discussed the famous Blair dossier on Iraq's weapons at our

previous meeting, a few months before it was published last September .
`Its really not very exciting you know' he told me. So what, I asked him
now, had changed?

`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 .'

What do you mean? Can I take notes?

`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") .

41 . The second explanation is entirely inconsistent with evidence that

Andrew Gilligan previously gave to this Inquiry as to the process of the
meeting. When he gave evidence on Day 3, Andrew Gilligan said that,
when he was checking with Dr Kelly the quotes that he wanted to use, "I
told him I also wanted to be able to use what he told me about Campbell
and the 45 minute claim being the example" [Day 3, page 107, lines 4-
6] . This suggests that Dr Kelly had already told Andrew Gilligan about

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

deleted material includes :

(1) "1 always said the programme was small"
(2) "Iraq survey group - 15 - six months to 2 years
(3) "Saddam"
(4) "real debate as to whether the mobile labs are what they appear to
be - is an odd piece of kit, feeling it cd be made into a fermenter,
but is it a fermenter"

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
~--5 T,,~ `3 I o o I 6
 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

necessary to delete these words? They add sense to the sentence .

They are not classified or secret words. They do not give away a
source . They do not reveal a trade secret.
(2) The word "the" has been omitted.
(3) The word "wek" has been changed to "wk" .
(4) The word "published" has been changed to "pub". Again, why
was it necessary to do this? It would be understandable if exactly
the reverse had occurred (i.e. an abbreviation had been removed
and replaced with the word that it was meant to represent) . But
why abbreviate a word that was already written in full?

The material generated by AG in preparation for the broadcast is

inconsistent with the account of the meeting that he gave in evidence

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].

48. The EPMS is significant in that:

(1) The narrative and sequence of events is inconsistent with both the
first and second saved versions of the memorandum [JP/11 or
ANG/5/13 and JP/15 or ANG/5/14] . Thus, by way of example
only, the EPMS suggests that the sentence "Most things in the
dossier were double-source but that was single source" was
followed by "And we believed that the source was wrong" and
that the sentence "Most people in intelligence weren't' happy
with it . . ." was a separate part of the narrative. Yet the second
saved memorandum suggests that the "Most people in
intelligence weren't happy with it. . ." sentence immediately
preceded the mention of Alastair Campbell .
(2) It includes passages that do not appear in either saved version of
the memorandum . Thus, by way of example only :
(a) It includes as a quotation the following sentence : "And we
believed the source was wrong". That sentence is
unsupported by the text files.
(b) It includes as a quotation the following sentences : "What we
thought it actually meant was that they could launch a
conventional missile in 45 minutes. There was no evidence
that they had loaded missiles with WMD, or could do so

18 FS I I7, POolF
 anything like that quickly" . Those sentences are unsupported
by the text files.

The content of Andrew Gilligan's article in the Mail on Sunday on

lst June 2003 is in many respects inconsistent with his account of the
meeting .

49. In his article in the Mail on Sunday [BBC/1/27] Andrew Gilligan

suggests that Dr Kelly said the following to him. It is of note that he
suggests that these are Dr Kelly's actual words. They are surrounded, in
Andrew Gilligan's article, by quotation marks :

"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)

50. This purported quotation is inconsistent with Andrew Gilligan's account

of the meeting in the following respects :
(1) First, Andrew Gilligan's note (both the first and second saved
version) records Dr Kelly as saying "the classic was the 45
minutes" not "the classic was the statement that WMD were
ready for use in 45 minutes". Andrew Gilligan has added
attributed words to Dr Kelly in the MoS article which, on the
basis of his own contemporaneous note, were never said.
(2) Second, the MoS article includes the quotation "..one source said
it took 45 minutes to launch a missile" . In the first saved version
of his note Andrew Gilligan records Dr Kelly as saying "one
source said it took 4[5] minutes to set up a rocket launcher" . In
the second saved version of his note Andrew Gilligan records Dr
Kelly as saying "one source said that it took 4[5] minutes to set
up a missile assembly". In evidence Andrew Gilligan said that
the change between the first and second saved versions of the

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 .

The loss of AG's manuscript note casts considerable suspicion on

the content of the conversation

51 . Andrew Gilligan claims to have been in possession of the manuscript

note on the day before the broadcast, 28b May 2003 : he says that he
used it to compile the EMPS to Miranda Holt [Day 18, page 4, lines 5-
8] .

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.

Andrew Gilligan has proved to be an unreliable historian .

54 . Although the following matters do not bear directly on the issue of

whether Andrew Gilligan accurately reported his meeting with Dr Kelly
on 22"d May 2003, the Inquiry may find it of assistance to examine how
accurate an historian Andrew Gilligan is in relation to other more
peripheral matters.

55 . In a document prepared on 18"' July 2003 [BBC/6/222] Andrew Gilligan

said that he had 4 meetings with DK. Yet, in August, he said that there
were only 3 such meetings . The number of meetings that the pair had is
probably irrelevant to the Inquiry. What is more relevant for present
purposes is that Andrew Gilligan committed himself to writing
(presumably in answer to a request from his managers) on the day that
Dr Kelly's death was announced and then changed his position within a
month of doing so.

56. In a document prepared on 18'h July 2003 [BBC/6/222] Andrew Gilligan

said that "My second face to face meeting was about 18 months ago and
then again in May 2002". He now accepts that this was wrong [Day 3,
page 12, line 1] .

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 .

D. Did Andrew Gilligan accurately report Dr Kelly in his broadcasts?

59. The plain and simple answer to this question is : no. Andrew Gilligan
and the BBC have conceded as much. Although generous concessions
have been made that significant parts of the broadcasts were inaccurate
it cannot be overlooked that in a national broadcast Andrew Gilligan
attributed to his source certain things when, in fact, the source had said
nothing of the kind. The main examples are set out below.

The Government probably knew the 45 minute claim was wrong

22 ic-SI ,3 ~OOZ,2
 before it decided to include it in the dossier

60. In his 6 .07am broadcast, AG said this:

". . .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 .

62 . It is important to note the following :

(1) Andrew Gilligan expressly states that "this is what we've been
told" . He does not state "I have formed the impression on the
basis of what I have been told. . ."
(2) Andrew Gilligan expressly states that the person who told him
"was one of the senior officials in charge of drawing up the
dossier."
(3) There is no support for this statement even in Andrew Gilligan's
EMPS memorandum to Miranda Holt . Yet this memorandum
was supposedly the basis for the broadcast that Andrew Gilligan
made on the morning of 29`h May 2003 . Even allowing for the
fact that this was an unscripted broadcast, and was part of a "two-
way" with John Humphrys, there was a substantial departure
from the contents of the EMPS .

The reason the 45 minute claim was not in the original draft was
because it was single sourced

63 . In his 6.07am broadcast Andrew Gilligan said:

'OO
1,3
`8
 " . . .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 .

The Government ordered things to happen

65 . In his 6.07am broadcast Andrew Gilligan said this:

"Downing Street, our source says, ordered a week before publication,

ordered it to be sexed up, to be made more exciting and ordered more
facts to be discovered" [BBC/1/4] (emphasis added)

66. Andrew Gilligan now accepts that these were not Dr Kelly's words [Day
19, page 13, lines 13 - 20] .

E. In those respects where Andrew Gilligan did accurately report Dr

Kelly in his broadcasts, was Dr Kelly accurate and truthful in what
he said?

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 .

68. The four matters are:

(1) That the 45-minute claim was single sourced;
(2) The 45-minute claim was based on real intelligence ;

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 .

72 . As to the claim that there was dissatisfaction amongst "people in

intelligence" about the 45 minute claim because it did not reflect the
considered view that they were putting forward, it seems that the
Government rests on the fact that no such disquiet ever found its way
through to Mr Scarlett, to the Secretary of State for Defence or to the
Prime Minister . To rest on a lack of knowledge is to miss the point.
There is now a wealth of evidence that there was, in fact, such
dissatisfaction within at least the Defence Intelligence Staff and that
such dissatisfaction was known to Dr Kelly.

F. Did the Government cause DK's identitv to be revealed?

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:

(1) First, the leaking of information as early as 4/5`' July 2003 .

(2) Second, the leaking of information by "Whitehall sources" on or
before 8tb July 2003 to Tom Baldwin of The Times.
(3) Third, the inclusion of information in an MoD Press Statement
issued at 5 .45pm on 8`n July 2003 .
(4) Fourth, the actions of the PMOS in his briefing at 3 .45pm on 9`h
July 2003 .
(5) Fifth, clues given by "Whitehall officials" in off the record
briefings on 9th July 2003 .
(6) Sixth, the inclusion of information in the Q + A material .
(7) Seventh, the failure to provide any reasonable explanation for the
change in strategy evidenced by the Q + A material of the 4"' July
2003 and that evidenced by the Q + A material of the 9`h July
2003 .
(8) Eighth, the fact that to issue only the Press Statement, mentioning
an unnamed official, would not have "corrected the public
record" (whatever that may mean) .
(9) Ninth, Alastair Campbell's diary gives direct evidence of the
political desire, in his words, to "get it out" .
(10) Tenth, the suggestion in Peter Watkins' e-mail of 9e' July 2003

26
J~~,S 13 f 0 O
 that "we should simply name our man".

75. Each source is examined below.

Clues as early as 4`h I 5m July 2003

76. Peter Beaumont, of The Observer, gave evidence that undermines the
Government's case that it took no steps to ensure that DK's name was
placed in the public domain. He gave clear evidence that, as early as 4rh
/ S"` July 2003, "hints were being dropped" [Day 9, page 123, lines 8-
12] . He said that "there was so much detail" . It is clear from Mr
Beaumont's understandable refusal to state who was dropping these
hints that they came from sources to whom he owes a duty of protection.

Clues to Tom Baldwin on or before 8`h July 2003

77. A not dissimilar process occurred with Tom Baldwin on or before 8`h
July 2003 .

79. Mr Baldwin published two relevant articles :

(1) The first, on 86 July 2003 contained the following sentence :

" . . .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 :

"The adviser is understood to work for the Proliferation and

Arms Control Secretariat and. . .is said to have previously worked
as a UN weapons inspector" .

80 . Mr Baldwin has confirmed to the Inquiry that the sources of both

articles were "conversations with Whitehall contacts" [Day 9, page 130,

C-s$ 1,-3 100 Z,7

27
 lines 9-10 and page 131, line 15] .

81 . The significance of these articles cannot, it is respectfully submitted, be

underestimated. They disclose that the Government was briefing a
journalist with information as to the source's identity at a very early
stage . The briefing for the article of the 7h July 2003 must have
occurred on or before 6fl' July 2003 . The briefing for the article of 8`h
July 2003 must have occurred on or before 7`h July 2003 . The position
is, therefore, that the Government was briefing as to the identity of the
source before it is said that a decision had been taken to release the Press
Statement .

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] .

83 . The family would make four observations on this reply:

(1) The Government's attempt to blame the BBC for this briefing
fails . True it is that other parts of the articles were attributed to
the BBC, but not these parts . As set out above, Mr Baldwin
confirmed to the Inquiry that these parts ofthe articles came from
Whitehall sources .
(2) No question of "ruling out a possibility" arises. There is direct
evidence that Whitehall sources leaked information that would
assist in identifying Dr Kelly's identity.
(3) It is improbable in the extreme this was an "indiscretion"

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

29 ~r5-B 13)13 oz.5

 in his speech, admitting of at least the possibility that a member of
Government had leaked information, is in stark contrast the assertion
previously made to Andrew Gilligan in cross-examination. When
Andrew Gilligan had made (it is submitted) the perfectly reasonable
point that it cannot reasonably be said that the BBC's Press Statement of
9`h July 2003 was the reason why the Government had to begin to
release information about Dr Kelly's job, role and status, by pointing out
the fact that information had been leaked by the Government before the
BBC Press Release, Counsel for the Government said this to him "You
have no basis for saying the Government had provided those [clues]"
[Day 19, page 63 line 20 to page 64, line 18] . There was a basis for this
suggestion . It was Tom Baldwin's evidence . He said that Whitehall
sources had provided the information .

Clues in the Press Statement of 8th July 2003

85 . At 5 .45pm on 81h July 2003 the MoD issued a Press Statement
[MOD/l/56] .

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.

Clues in the Lobby Briefings of 9th July 2003

88. At 11 .00am on 9`h July 2003 Tom Kelly, one of the two PMOS's, gave a
Lobby Briefing . The full text of the Briefing can be found at
CAB/l/212-217 . In the course of the Briefing Mr Kelly gave 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 "He was a technical expert who had worked
for a number of Government departments, including the MoD,
where is currently working, although his salary was paid by
another department" [CAB/ 1/212]
(2) The PMOS said that "he was not a member of the Senior Civil
Service or of the Security and Intelligence Service, nor was he
involved in military intelligence . He was a technical expert who
had worked in a number of different areas and departments . He
was currently working with the MoD, though his salary was
being paid by another department" [CAB/l/214]

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]

90 . These clues were designed both to give journalists some material to

begin the hunt for the official and to give them an indication that, given
those clues, there would be very few people that would fit the bill . It
had exactly the desired effect.

91 . A significant factor in at least James Blitz's decision to identify who the

MoD official referred to in the Press Statement was the Press Briefing
given by Tom Kelly at 3 .45pm on 9`h July 2003 . Mr Blitz said this in
evidence :
"A. . . .I was not actively pursuing for the purposes of that article in
the morning [of 9ffi July] the question of who the individual was
who had come forward in the MoD press release .
Q. Did you change your attitude during the course of Wednesday 9"`
July?
A. Yes, I did.
Q. Why was that?
A. Because 1 attended the Lobby briefing at 3 .45 for Lobby
journalists that was given by Mr Tom Kelly"

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 :

"Asked why we were so reluctant to say which department paid his

salary, the PMOS said that providing this information would make it
easier to identify him given the fact that there were only a few people
who were paid a salary by this particular department but who worked for
other departments . Asked if he was paid by the FC, the PMOS declined
to answer the question on the grounds that he did not want to do
anything which might identify who the person was" [FIN/1/46-47]

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]

Clues in the Q + A Material

95. The Q + A material contained the following clues as to the identity of

33 ~-5,t )3y 0103

 the source:
(1) He has been in his current position for 3-4 years ;
(2) Before his current position he was a member of UNSCOM ;
(3) His involvement in the dossier was to provide historical details of
UNSCOM's activities prior to 1998 (thus assisting to date his
membership of UNSCOM) ;
(4) He is still working for the MoD ;
(5) He is not in Iraq, although he visited the country recently for a
week;
(6) He is not a member of the Iraq Survey Group.

96 . The denials that this information, if released, was not sufficient to

identify the source must be regarded as simply unsupportable .

97 . Richard Norton-Taylor regarded the information that he was given that

the source was a former UNSCOM weapons inspector as "a big clue":
there were not a great number of people who fell within this category -
10 or so [Day 9, page 108, lines 5-7]

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.

Unexplained Change in Q + A Strategy

99. The first two paragraphs of Q + A material of 4`h July 2003 evidence a

34
FS1l31 O034-
 reasonable and proper approach to media requests :

Who is the official?

We are not prepared to name the individual involved .
Why not?
We have released all the relevant details . There is nothing to be gained
by revealing the name of the individual who has come forward
voluntarily [CAB/21/3]

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.

Correcting the Public Record

102 . The Government has repeatedly said that it wished "to correct the public
record" . Whilst that phrase is not entirely understood, the Press
Statement was an insufficient vehicle to achieve the stated aim. As Lord
Hutton put it to Mr Howard : "But if the civil servant was not going to be
named and if he was not going to give his account of what he said to Mr
Gilligan, how would it advance the public knowledge to say that an
unnamed civil servant had come forward" [Day 5, page 114, line 23 et
seq] .

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.

Peter Watkins' e-mail of 9~" July 2003

107. On the morning of 24"' September 2003 (that is, the day after Mr Hoon
and Mr Campbell gave their evidence and long after Jonathan Powell
and Kate Wilson had given evidence) the MoD disclosed an e-mail sent
to Kate Wilson from Peter Watkins at 1024am on 9`h July 2003
[MOD/44/15] . It encloses a draft letter from Geoff Hoon to Gavyn

FS 1131 Do 3 b
36
 Davies. The text of the e-mail reads "We spoke. Herewith draft letter

to Gavyn Davies. Is this consistent with the Campbell suggestion this

morning? Jonathan Powell has separately suggested to SofS that we
should simply name our man, but left the decision to Mr Hoon who has
not yet reached a final view". In its closing speech the Government
submitted that the reference to "naming our man" was a reference to
naming Dr Kelly in a private letter to Gavyn Davies and not to naming
him publicly and was critical of the suggestion that had previously been
made to the contrary [Day 25, page 70, line 20 et seq] . The family
would observe that:
(1) The Inquiry was prevented from testing the Government's
assertion by the Government's own late disclosure of the e-mail.
(2) Whilst both interpretations of the e-mail as set out above are
possible as a matter of construction, the suggestion that the
reference to "n [ing] our man" in the more general sense is
certainly consistent with the entry in Alastair Campbell's diary
for that day that "The biggest thing needed was the source out"
[CAB/39/2] .
(3) The construction which the Government attempts to place on the
email, as referring to the letter to the BBC, ignores the word
"separately" which is at the beginning ofthe last sentence .

108 . Despite this plethora of evidence to support the family's case of

deliberate Government disclosure of Dr Kelly's identity by stealth,
numerous witnesses denied that this strategy existed .

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" .

115 . The suggestion made by Mr Sumption QC on behalf of the Government

in his closing address that there was no point in a conspiracy to disclose
Dr Kelly's name by stealth when, as a matter of law, it could have been

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 .

Dr Kelly's involvement in the process as it was designed

117. The Government has yet to explain to the Inquiry why Dr Kelly was
kept in the dark about the strategy that No 10 and the MoD had
developed to confirm his name to journalists if it was put to the MoD
Press Office . It is submitted that the plain and obvious reason that he
was not informed of the strategy was the risk that he might not consent
to it and might decline to give evidence to the Select Committees,
thereby defeating the purpose of making his name public .

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] .

120 . This purported explanation needs only to be stated to be dismissed.

Consent Not Needed

121 . The second explanation was provided by Mr Hatfield . He said: "I do
not believe - I did not believe and do not believe I required his consent"
[Day 19, page 212, lines 14-15] . This speaks volumes as to the attitude
that the MoD had in the course of its decision-making : Dr Kelly's views
were irrelevant . It may shed light on the true nature of other of Mr
Hatfield's interactions with Dr Kelly.

Keeping Dr Kelly fully informed throughout the process

122 . There are three parts of the process that Dr Kelly should have been
informed about :
(1) The decision to make a Press Statement, the content of that Press
Statement and timing of the release ofthe Press Statement;
(2) The content of the Q + A material ;
(3) The decision that had been taken to confirm his name if a
journalist put it to the Press Office .

The Fact, Content and Timing of the Press Statement

123 . It is clear that Dr Kelly was informed of the existence of a Press

Statement. He was shown a copy of an early (although not the earliest)
draft of a Press Statement in the course of the interview on 7"' July 2003
and, it seems, took a copy of that statement away with him [see

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

Statement that was eventually to be released [MOD/1/67], which

contains of the material that would assist in such identification, had not
yet been added. Dr Kelly was therefore left with the impression that a
statement might be issued which did not identify him and which would
not lead, even indirectly, to his identity being revealed .

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] .

H. Did the MoD provide reasonable support, assistance and guidance

in the course of the naming process?

130. There are, in broad terms, four relevant stages:

(1) Before the Press Statement was released ;
(2) After the Press Statement was released, but before Dr Kelly's
name entered the public domain;
(3) After the Press Statement was released and after Dr Kelly's name
entered the public domain;
(4) In preparation for the hearings before the FAC and ISC.

Before the Press Statement was released

131 . According to Mr Hatfield, Dr Kelly was told "that the button had been

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.

Before Release of Name Into Public Domain

135. No witness has suggested that Dr Kelly was informed in the course of
8th or 9`h July 2003 that joumalists were seeking to identify him and that,

given his employer would adopt a pliant and co-operative attitude to

requests for information that would assist them in their task, such
identification may occur at any moment.

After Release of Name Into Public Domain

136. The first identification of Dr Kelly by a journalist was at about 5 .30pm
on 9th July when the MoD confirmed that the identification by Mr Blitz
was correct . Yet it was not until 7.03pm that Dr Kelly was informed of
this identification by Dr Wells .

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.

138. Fortunately Mr Nicholas Rufford arrived at the Kellys' house at about

7 .30pm and was able to inject a degree of realism and urgency into Dr
Kelly, who was wholly unprepared for the imminent descent of the
media. As a result, Dr Kelly telephoned the MoD Press Office and left
the house with his wife at very short notice.

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 .

141 . Otherwise nothing seems to have been done to verify Dr Kelly's

wellbeing or lack of it, nor to provide him with proper support. For

example, no professional counselling was arranged . No contact was

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" .

Preparation for the Committees

143 . The meeting of 10 July 2003 ought to have been used an opportunity to
assess Dr Kelly's health and state of mind, to see how he was coping
with the pressure that he was under, to ensure that he was getting all of
the support that he needed in readiness for the forthcoming committee
hearings, and to generally provide assistance to Dr Kelly . Dr Kelly's
needs ought to have been the centre of attention.

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?

I. Was there an attempt to belittle or minimise Dr Kelly's status and

position after he had been named by the MoD?

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.

The Government's Position : Before Death

155 . In all 3 versions of the Q + A material [CAB/21/3, CAB/21/5/ and
MOD/1 /62] Dr Kelly was described as "not a member of the SCS -he is
a middle - ranking official" .

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]

157. In evidence Sir Kevin said:

"I confess I slightly overdid the "relatively junior" point. As time went
on I realised that Dr Kelly was actually very eminent in his field" [Day
9, page 91, lines 13-17]

158 . In a memorandum dated l lth July 2003 to the PS/Foreign Secretary Mr

PD Watkins, PS/Secretary of State for Defence, likewise described Dr
Kelly as "a relatively junior official" [MOD/1/77-78] . This description
of Dr Kelly as a junior official was repeated in a draft letter from the
Secretary of State for Defence to Ann Taylor [MOD/1/79] . Although
the letter was never sent in this form, it is submitted that it underlines at
least the thinking within the MoD at this time . It was, it seems, the
intervention of the Foreign Office that caused the description to be
deleted from the letter [CAB/1/120 - see entry relating to 15'' July] .

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 .

161 . Annexed to an e-mail sent by Jonathan Powell to several addressees on

8`' July 2003 were draft Q + A's . the last of these, referring to Dr Kelly,
stated "This rogue element was not part of the intelligence services at
all!" [Cab/1/59-61]

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 :

"Q. That is so even though he had been awarded a CMG?

A. Yes.
Q. Which is normally given to the Senior Civil Service, is it not?
A. I have to correct you. At the time he was awarded the CMG,
whatever the current practice is, the Senior Civil Service did not
even exist" [Day 20, page 18, lines 9-15]

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 ]

The Evidence : After Dr Kelly's Death

168. The Sunday Telegraph of 10th August 2003 (and other newspapers)

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]

170. Mr Kelly apologised unreservedly for this slur. In his statement of

apology [CAB/16/2] Mr Kelly said that he was not signalling a
Government strategy aimed at discrediting Dr Kelly .

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

SUPPLEIVIEENTAL SUBMISSIONS ON BEHALF OF THE FAAULY

1 The Family advance supplemental submissions in relation to :

(i) Topics F and G on pages 25-42 of the Family's Main Submissions

(Revealing Dr Kelly's Name etc) :

(ii) Topic I on pages 48-53 of the Famiiy's Main Submissions (Belittling

Dr Kelly's status) .

F and G: Revealing Dr KeIIy's Name etc

Thefacts

2 Prior to 8 .7 .03 there was evidently a desire to release Dr Kelly's identity

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

anodyne Press Statements together with supporting Q + A material6 that

would not have tended to reveal Dr Kelly's identity.

3 As a result of the meeting on 8.7.03 chaired by the Prime Minister a fuller

Press Statement' with new Q = A materials was prepared. In combination,

they made it inevitable that Dr Kelly's identity would be revealed . The

convoluted but effective mechanism by whicb fnis was achieved was:

(i) giving sufficient information to allow the media to narrow down the

number of candidates to a tiny fraction of the potential pool ;

(ii) informing the media that if they corracfly guessed the name it would

be confirmed;

(iii) allowing the media to play the guessing game;

(iv) confirming the name when it was given.

' 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

F s5~' 3';' ~p5 5

4 This represented a fundamental change of stance . It resolved the question as

to which strategy should be adopted for the desired aim of releasing Dr

Kelly's identity into the public domain.

5 Sir Kevin Tebbit appeared to agree that this represented a change of stance9,

although he evidently preferred to describe it euphemistically in temzs of a

"decisive rtleeting"1° or to assert that the '-issue had moved forward"' 1 .

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

informed. On the contrary, there was every reason to do so since:

(i) purportedly, part of the strategy was to proceed with Dr Kelly's co-

operation ; and

(ii) the change of stance was bound to affect Dr Kelly .

Submissions

7 The family's repeats, as its principal suomission, the contention made in

closing, that "whatever the position in strict law; common decency required

that Dr Kelly be kept informed-° ."

'?ay 26, page 56 hne 14 -?aee 57 line 19

lDay 26, page 111, ime 22
1' Day 26, page 55, line 225
3Z
Paragaphs 122-128 of the Family= s wrnen Siiotmssions
'Day 25 page 18 lines 5-6

- ,~5~ I 3 ~ oo50
8 The family is content for the focus to remain on that which fairness or

decency required in the circumstances, as opposed to an analysis of any

illegality that arises out of the Government's failure to keep Dr Kelly

informed . Nevertheless, it may be of assistance to the Inquiry that the

family submit an analysis of the legal framework .

Belittling Dr Kelly's status

9 Three aspects of Sir Kevin Tebbit's evidence are consistent with the body

of material that suggests a concerted strategy to demean Dr Kelly.

14 Sir
10 First, having confessed that he overdid the "rsIatively junior''' -point

Kevin continued to stand by his description of Dr Kelly as a "relatively

junior" ofnciaIls . The Family repeats the o'vservations on this point in the
.
written submissionsls

11 Second; Sir Kevin accepted that he told a BBC correspondent whom he

hardly 'knew that Dr Kelly was regarded as a "bit weird" and "rather

eccentric"" . The MOD, having been authoritatively reported as regarding

Dr Kelly as "unreliable" and "eccentric"18, did nothing to correct the

position .

~4 Day 9, page 91, hnes 13-17

~ Day 26, page 74, hnes 4-7
'6FSB3/0050 at paragraphs 162-167
1' Day 26, page 9 1 lin.°. 22 -page S2 iuie 1
`e FAM~1010001

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

words. It thus-appears that he is in the unfortunate position of having been

misunderstood by two persons: the BBC Diplomatic correspondent and also

the Prime Minister's Director of Communications . In any event the question

of whether Sir Kevin actually used the precise words "show of*." may be a

moot point: he accepts that he used an expression to like effect2°.

13 The family are puzzled that the Prime Minister's injunction against

prejudging the Inquiry is deployed as a basis for letting an assertion stand

on the public record that the MOD regarded Dr Kelly as "unreliable" and

"eccentric ."'' It is difficult to reconcile the unwillinaness to correct the

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

for having made them2'`.

14 Interestingly, it appears that Sir Kevin did not seek prior authorisation for

this discussion with a journalist`'

. Nor did his rcalisatton that he was

speaking to a journalist prevent him from giving his views on Dr Kelly. Nor

is there any suggestion that he reported the meeting immediately

'9 Attributed to him by Mr Campbell - CAB139/DOl

2° Day 26, page 76, line 15 -pa~e 77 !in- 10
Zl Day 26, paEe
83 lint 25 -page 84 l.ne 9
Z` Da;~ 26, page 80 lines 1-6

FS3I 31 00 S8
 afterwards. Nor, apparently, was there a need to correct the public record

after this meeting was reported in the press . 4

The law

15 The decision to confirm Dr Kelly's name engaged three duties:

(i} the implied term of mutual trust and confidence in Dr Kelly's

contract of employment ;

(ii) article 8 of the European Convention of Human Rights ;

(iii) the first data protection principle contained in Schedule 1 to the Data

Protection Act 1998 .

16 It is stressed at the outset that there are undoubtedly circumstances where

an employer can reiease the name of an exnployee to the media without

thereby breaching any of these duties. It all depends upon the context and

the manner in which it is done .

17 Imtilied term: As has been pointed out"~ the family have not seen a

document that purports to set out Dr Kelly's terms and conditions of

emplo~-ment. Nonetheless, as the Govemment accepts`°, an implied term of

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

"without reasonable and proper cause, conduct itself in a manner that is

calculated or likely tb destroy or seriously damage the relationship of trust

and confidence which should exist between employer and employee-" It is

not necessary to show that the employer intended this consequence . Rather,

it is enough that judged reasonably and sensibly, this was the likely

consequence - Woods v TTW Car Services (Peterborough) Ltd [1981] ICR

666 .

1S Factors relevant to assessing whether trust and confidence have been

destroyed by the employer's act include the nature of the act complained of,

whether it was voluntary or forced upon the employer, its magnitude in

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

identity had been revealed sen~ed, individually and cumulativelv, seriously

 to damage the relationship of trust and confidence between employer and

employee.

20 The belittling served only to aggravate this breakdown of trust and

confidence .

21 Human Rights Act 1998 : The confirmation of Dr Kelly's name to the

media, with the inevitable consequences, amounted to an interference with

his rights under article 8 - see by way of analogy Whiteside v United

Kingdom (1994) 76A DR 80, Arrondelle v United Kingdom (1982) 26 DR 5

and Ghappell v United Kingdom (1987) 5 3 DR 241 .

22 It would'be open to the Governrnent to seek to justify the interference by

reference to one of the legitimate aims set out in article 8(2) . In particular, it

could be argued that it was necessary to confirm the name of Dr KeIly in

order to protect the rights and freedoms of others, notably other civil

servants who might otherwise have been subjected to scrutiny by the media .

However, the disclosure of Dr Kelly's name without warning him izrst or

immediately aftenvards was neither a necessary nor a proportionate

interference with article 8(1) . It cannot therefore be justified under article

8(2) .

23 Article 8 includes a positive obligation to provide individuals with all

relevant and appropriate information they require to safeguard their right to

 respect for private and family life - see eg McGinley and Egan v United

Kingdom (1999) 27 EHRR 1 at para 101 :

Where a Government engages in hazardous actmities, such as those in

issue in the present case, which might have hidden adverse
consequences on the health of those involved in such acnvities,
respect for private and family life under Arucle 8 reoutres that an
effective and accessible procedure be established which enables such
persons to seek all relevant and appropriate information.

24 In this context the information that Dr Kelly required in order to be able to

take steps to safeguard his right under article 8(1) was that (i) the

Government had decided to institute a guessing game that would result in

the confirmation of his name to the media and (,ii) the Government had in

fact confirmed his name to the media.

25 Where a positive obligation is established, and it has not been cornplied

with, there is no need for the Court to go on to examine potential

justifications under article 8(2) - see eg Marclx v Belgium (1979) 2 EHRR

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

confirmation of Dr Kelly's identity amounts to the processing of data - see

section 1(a) of the Act insofar as it defines 'processing."

2? By the first data protection principle:

 Personal data shall be processed fairly and lawfully and, in particular,
sball not be processed unless-
(a) at least one ofthe conditions in Schedule 2 is met. ..

28 For the reasons given above the disclosure of Dr Kelly's identity, without

keeping him informed, was an unfairness . It was thereby a breach of the

first data protection principle .

Jeremy Gompertz QC
Jason Beer
Jeremy Jolknson
16tb October 2003
 The Hutton Inquiry

SUPPLEMENTAL SUBMISSIONS ON BEHALF OF THE FAl'vI1Z .Y

1 The Family advance supplemental submissions in relation to :

(i) Topics F and G on pages 25-42 of th-_ Family's Main Submissions

(Revealing Dr Kelly's Name etc) ;

(ii) Topic I on pages 48-53 of the Family's Main Submissions (Belittling

Dr Kelly's status) .

F and G: Revealing Dr Kelly's Name etc

Thefacts

2 Prior to 8 .7 .03 there was evidently a desire to release Dr KaD-'s identity

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

anodyne Press Statements together with supporting Q - A material6 that

would not have tended to reveal Dr Kelly's identity.

3 As a result of the meeting on 8 .7 .03 chaired by the Prime Minister a fuller

Press Statement7 with new Q + A materials was prepared. In combination,

they made it inevitable that Dr Kelly's identity would be revealed . The

convoluted but effective mechanism by which this was achieved was:

giving sufficient information to allow the media to narrow dovrn the

number of candidates to a tiny fraction of the potential pool ;

(ii) informing the media that if they correctly guessed the name it would

be confirmed;

(iii) allowing the media to play the guessing g e;

(iv) conl3miing the name when it was given .

' 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

,FSS ' 3 Io065

4 This represented a fundamental change of stance . It resolved the question as

to which strategy should be adopted for the desired aim of releasing Dr

Kelly's identity into the public domain.

5 Sir Kevin Tebbit appeared to agree that this represented a change of stance9,

although he evidently preferred to describe it euphemistically in terms of a

"decisive meeting"1° or to assert that the "issue had moved forward"' 1 .

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

informed . On the contrary, there was every reason to do so since :

(i) purportedly, part of the strategy was to proceed with Dr Kelly's --c-

operation ; and

(ii) the change of stance was bound to affect Dr Kelly .

Submissions

7 The family's repeats, as its principal submission, the contention Mad-_ in

closing, that "whatever the position in strict law, common decency required

that Dr Kelly be kept inforrned'."

9 Day 26, page 56 iine i4-page 57 line 19

t0
Day 26, page 111, iine 22
°~ Day 26, page 55, line 25
7` Para ;aphs 122-128 of the Family% s wntten Submissions
1' Day 25 page 18 lines 5-6

~s3 1 3 I oo ~6
8 The family is content for the focus to remain on that which fairness or

decency required in the circumstances, as opposed to an analysis of any

illegality that arises out of the Government's failure to keep Dr Kelly

informed . Nevertheless, it may be of assistance to the Inquiry that the

family submit an analysis of the legal framework .

Belittling Dr Kelly's status

9 Three aspects of Sir Kevin Tebbit's evidence are consistent with the body

of material that suggests a concerted strateg3to demean Dr Kelly .

10 First, having confessed that he overdid the "relatively junior" point" Sir

Kevin continued to stand by his description of Dr Kelly as a "relatively

junior" ofiicial}5 . The Family repeats the observations on this point in the

written submissionsls .

11 Second, Sir Kevin accepted that he told a BBC correspondent wlhom he

hardly knew that Dr Kelly was regarded as a "bit weird" and "rather

eccentric"17 . The MOD. having been authoritatively reported as regarding

Dr Kelly as "unreliable" and "eccentric"ls, did nothing to correct the

position .

14 Day 9, page 91, :mes 13-17

ls
Day 26, page 7/, hnes 4-7
3E
7SB,'3/00.i 0 at -paragraphs 162-167
17 Day 26, page
81 line 22 -page 82 line 1
'B FAM/10/0001

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

words . It thus appears that he is in the unfortunate position of having been

misunderstood by two persons: the BBC Diplomatic oorrespondent and also

the Prime Minister's Director of Communications . In any event the question

of whether Sir Kevin actually used the precise words "show off' may be a

moot point: he accepts that he used an expression to like effect2o,

13 The family are puzzled that the Prime Minister's injunction against

prejudging the Inquiry is deployed as a basis for letting an assertion stand

on the public record that the MOD regarded Dr Kelly as "unreliable" and

"eccentric."2' It is difficult to reconcile the unwillingness to correct the

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

for having made themZ'.

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

is there any suggestion that he reported the meeting immediately

'y Atnbuted to him by Mr CampbeL - CAB/39 /001

z° Day 26, page 76, hne 15-rage-7 line 10
" Day 26, page 83 une 25 -page 84 line 9
'~ Day 26, page 80 lmes :-6

~ 3 1 00'39
 afterwards . Nor, apparently, was there a need to correct the public record

after this meeting was reported in the press. 24

The law

15 The decision to confirm Dr Kelly's name engajed three duties:

(i) the implied term of mutual trust and confidence in Dr Kelly's

contract of employment;

(~ci) article 8 of the European Convention of Human Rights;

(iii) the first data protection principle contained in Schedule 1 to the Data

Protection Act 1998.

16 It is stressed at the outset that there are undoubtedly circumstances where

an employer can release the name of an employee to the media without

thareby breaching any of these duties. It all depends upon the context and

the manner in which it is done .

17 implied term: As has been pointed out`5 the family have not seen a

document that purports to set out Dr Kelly's terms and conditions of

employment. Nonetheless, as fne Govemment accents'6, an iunpl.ed term of

-' 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

"without reasonable and proper cause,- conduct itself in a manner that is

calculated or likely to destroy or seriously damage the relationship of trust

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

consequence - Woods v WM Car Services (Peterborough) Ltd (1981J ICR

666 .

18 Factors relevant to assessing whether trust and confidence have been

destroyed by the employer's act include the nature of the act oomplairied o£

whether it was voluntary or forced upon the employer, its magnitude in

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

identity had been revealed served, individually and curnulatively, seriously

 to damage the relationship of trust and confidence between employer and

employee.

20 The belittling served only to aggravate this breakdown of trust and

conli
fidence.

21 Human Rig,hts Act 1998 : The confirmation of Dr Kelly's name to the

media, with the inevitable consequences ; amounted to an interference with

his rights under article 8 - see by way of analogy W7aiteside v United

Kingdom (1994) 76A DR 80, Arrondelle v United Kingdom (1982) 26 DR 5

and ChaDpell v United Kingdom (1987) f 3 DR 241 .

22 It would be open to the Government to seek to justify the interference by

reference to one of the legitimate aims set out in article 8(2) . In particular, it

could be argued that it was necessary to confirm the name of Dr KcIly in

order to protect the rights and freedoms of others, notably other oivil

servants who might otherwise have been subjected to scrutiny by the media.

However, the disclosure of Dr Kelly's name without warning him fzrst or

imnaediazely afterwards was neither a necessary nor a proportionate

interference with article 8(1) . It cannot therefore be justified under article

8(2) .

23 Article 8 includes a positive obligation to provide indn"tduals vith all

relevant and appropriate information they require to safeguard their rigbt to

s ~Sy) )3 1
 respect for private and family life - see eg McGinley and Egan v United

Kingdom (1999) 27 EHRR 1 at para 101:

where a Government engages in hazardous activities, such as those in

issue in the present case, which might have hidden adverse
consequences on the health of those involved m such activities,
respect for private and family life under Article B requires that an
effective and accessible procedure be established wlnch enables such
persons to seek all relevant and appropriate mformation.

24 In this context the information that Dr Kelly required in order to be able to

take steps to safeguard his right under aricle 8(1) was that (i) the

Government had decided to institute a guessing game that would result in

the confirmation of his name to the media and (ii) the Government had in

fact confirmed his name to the media.

26 ti'dhere a positive obligation is established, and it has not been complied

with, there is no need for the Court to go on to examine potential

justifications under article 8(2) - see eg Marcla v Belgium (1979) 2 EE-IRR

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

confirmation of Dr Kelly's identity amounts to the processing of data - see

section 1(a) of the Act insofar as it defines `processing,"

27 By th° nrst ciata protection principle :

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

keeping him informed, was an unfairness . It was thereby a breach of the

first data protection principle.

Jeremy Gompertz QC
Jason Beer
Jeremy Johnson
16th October 2003