hearing transcript - 1 august 2003 morning

8/8/2019 Hearing Transcript - 1 August 2003 Morning

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15 have seen the name in most of this morning's newspapers.16 "The BBC will not be making any more comments about,17 or responding to any claims concerning the identity of18 Andrew Gilligan's source for his story on the Today19 programme on 29th May, or the identity of Susan Watts'

20 source for her story on Newsnight on 2nd June."21 27. On 10th July the Clerk of the Foreign Affairs22 Select Committee of the House of Commons wrote to23 Dr Kelly stating that the Committee wished to hear oral24 evidence from him in public at 3 pm on Tuesday 15th July25 to answer questions directly relevant to the Committee's

131 report published earlier that week, arising from the2 Ministry of Defence statement of 9th July.3 28. On 10th July the chairman of that Committee,4 Mr Donald Anderson MP, wrote to Mr Hoon informing him5 that the Clerk was writing to Dr Kelly inviting him to6 appear before the Committee to give oral evidence in7 public on Tuesday 15th July.8 29. On 10th July the Clerk to the Intelligence and9 Security Committee conveyed orally to the Ministry of10 Defence a request that Dr Kelly should give evidence11 before that Committee also on 15th July.12 30. On 10th July Dr Kelly confirmed that he would13 be prepared to appear before both Committees.14 31. Some time between 10th and 14th July Dr Kelly15 returned from Cornwall and stayed with one of his16 daughters in Oxford.17 32. On 15th July Dr Kelly arrived in London to give18 evidence before the Intelligence and Security Committee19 on that morning but the Ministry of Defence was informed20 that his session before that Committee was postponed.21 33. On the afternoon of 15th July Dr Kelly gave22 evidence, which was televised before the Foreign Affairs23 Committee.24 34. On 16th July Dr Kelly gave evidence in25 a private session to the Intelligence and Security

141 Committee. Dr Kelly then returned to his home in2 Oxfordshire.3 35. On the afternoon of 17th July Dr Kelly left his4 home, telling his wife that he was going out for a walk5 but he did not return.6 36. On 18th July at 9.20 am a police search team7 found the body of a male person at Harrowdown Hill,8 a few miles away from Dr Kelly's home. The body was9 formally identified as the body of Dr Kelly on the next10 morning.

11 37. A post-mortem examination was carried out by12 Dr Nicholas Hunt, a Home Office accredited forensic


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13 pathologist and his post-mortem report dated 19th July14 has been sent to me by the coroner. A toxicology report15 has also been sent to me by the coroner. The16 post-mortem report will be referred to in greater detail17 at a later stage in this Inquiry. However, it is

18 relevant to state at this stage that it is the opinion19 of Dr Hunt that the main factor involved in bringing20 about the death of Dr Kelly was the bleeding from21 incised wounds to his left wrist. Dr Hunt also states:22 "The fact that the watch appears to have been23 removed whilst blood was already flowing suggests that24 it has been removed deliberately in order to facilitate25 access to the wrist. The removal of the watch in this

151 way and indeed the removal of the spectacles are2 features pointing towards this being an act of self3 harm."4 Dr Hunt also states:5 "It is noted that [Dr Kelly] has a significant6 degree of coronary artery disease and this may have7 played some small part in the rapidity of death but not8 the major part in the cause of death."9 The report also states that four electrocardiogram10 electrode pads were found on his chest, two over each11 side of the upper chest area and two over each side of12 the lower chest area.13 38. On 20th July the BBC stated that Dr Kelly was14 its main source of its report that Downing Street had15 "sexed up" the dossier.16 It is clearly important that I and the public should17 have a very much more detailed and fuller picture of the18 facts than the outline which I have just given.19 Therefore the first task in this Inquiry will be to20 flesh out that outline. This is what will be done at21 the next stage of the Inquiry and I propose to sit again22 on Monday 11th August. It is not my present intention23 that Mr Dingemans QC, the Senior Counsel to the Inquiry,24 should make an opening statement but I intend

25 straightaway to invite witnesses to give evidence in

161 chronological order as to the sequence of events insofar2 as that is possible. I have no power to swear witnesses3 and the witnesses will not be sworn. I propose to ask4 first a witness from a Government department to give5 evidence of Dr Kelly's expertise in chemical and6 biological warfare and of his employment in the7 Government and of his knowledge of the September dossier8 and of any part which he played in the preparation of

9 that dossier. When I say "I propose to ask" or "I will10 ask" I mean that Counsel to the Inquiry will put the


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11 question to the witness on my behalf. I will then ask12 Mr Andrew Gilligan to describe:13 (i) his meeting with Dr Kelly on 22nd May 2003 and14 any earlier meetings and discussions which he had had15 with Dr Kelly;

16 (ii) how his report on the BBC Today programme on17 29th May was prepared and broadcast;18 (iii) the nature of the editorial supervision in19 respect of that broadcast;20 (iv) whether the Government was given any prior21 notice of the report and of its contents;22 (v) the publication of his article in the Mail on23 Sunday on 1st June.24 I will also ask Ms Susan Watts and Mr Gavin Hewitt25 to deal with similar matters in respect of their

171 meetings and conversations with Dr Kelly and their radio2 and television reports. I will then ask a witness or3 witnesses from the BBC to give the reasons why the BBC4 declined to say that Dr Kelly was the source or a source5 of those reports until after his death.6 I will then ask witnesses from the Ministry of7 Defence and other Government departments (both officials8 and the Prime Minister's Director of Communications and9 Strategy, Mr Alastair Campbell, and Ministers) to give10 details of:11 (i) The discussions which took place between12 Dr Kelly and other officials in the Ministry of Defence13 or any other officials or persons in or connected with14 the Government from the time when Dr Kelly told the15 Ministry of Defence that he had had a meeting with16 Mr Gilligan on 22nd May.17 (ii) The discussions which took place between18 officials in the Ministry of Defence and any other19 persons in the Government relating to Dr Kelly and the20 meeting he had had with Mr Gilligan and between21 officials and Ministers and ministerial advisers.22 I will also wish to see produced at the Inquiry copies

23 of the letters, memoranda, reports and other documents24 which passed between the Ministry of Defence and other25 Government officials and minutes of meetings which in

181 any way related to Dr Kelly.2 (iii) The circumstances in which Dr Kelly's name3 became known to the press and media and the decisions4 taken within Government in relation to that matter.5 (iv) How and why the decision was taken within6 Government that Dr Kelly should give evidence to the

7 Foreign Affairs Select Committee of the House of Commons8 and to the Intelligence and Security Committee, and the


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9 arrangements which were made within the Ministry of10 Defence for his appearance before those Committees and11 any arrangements which were made for his health and12 well-being.13 At some stage in the course of the Inquiry I propose

14 to ask the Prime Minister and the Secretary of State for15 Defence, Mr Geoff Hoon, to give evidence of their16 knowledge of the discussions which took place and the17 decisions which were taken in relation to Dr Kelly.18 At some stage in the course of the Inquiry I also19 propose to ask Mr Gavyn Davies, the chairman of the20 board of governors of the BBC, to give evidence in21 relation to his correspondence with Mr Hoon.22 I propose to ask Mr Donald Anderson MP, the chairman23 of the Foreign Affairs Select Committee of the House of24 Commons, and Mrs Ann Taylor MP, the chairman of the25 Intelligence and Security Committee, how Dr Kelly came

191 to give evidence before those Committees. Mr Anderson2 has written to me to say that he is anxious to cooperate3 with me as closely as possible. From a letter which4 I have received from the Clerk to the House of Commons5 in a reply to a letter from me, it appears that the6 hearing of evidence by me relating to the proceedings of7 the two Committees would not constitute a breach of the8 privileges of Parliament, although this is subject to9 any submissions which I may hear from counsel.10 I also propose to ask members of the press and media11 to give evidence as to how the name of Dr Kelly came12 into the public domain and to describe discussions or13 interviews which they had with him about the time when14 his name became known.15 Mrs Kelly, Dr Kelly's widow, has told me that she is16 willing to give evidence to the Inquiry. I am most17 grateful to her for agreeing to do this, and I will ask18 her to give her evidence at some stage in the Inquiry.19 I may also ask one or more of Dr Kelly's daughters to20 give evidence.

21 I will ask the Thames Valley Police to give evidence22 of the finding of Dr Kelly's body and of the steps which23 they took thereafter.24 I propose to call medical evidence to deal with the25 state of Dr Kelly's physical health and to explain why

201 he had electrocardiogram electrode pads on his chest2 when his body was discovered.3 I also propose to call a psychiatrist to state his4 opinion, insofar as it may be possible to do so, as to

5 Dr Kelly's state of mind at the time of his death.6 I may also call friends and colleagues of Dr Kelly


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7 who may be able to give relevant evidence as to his8 state of mind.9 I may also call a member of the Baha'i faith to10 explain the beliefs of that faith and how they may have11 influenced Dr Kelly.

12 What I have stated is only an outline of the13 evidence which I propose to hear. I may well decide to14 call other persons to describe their part in the matters15 to which I have referred and to deal with other matters.16 In deciding on whom I will ask to give evidence,17 I will have regard to the matters which I have requested18 relevant organisations and persons to provide to me and19 which they have already provided. In addition, I will20 take into account further material which will be21 provided to me before the next stage of the Inquiry.22 The witnesses whom I will ask to attend at the next23 session of the Inquiry will be examined on my behalf by24 Mr Dingemans and Mr Knox, senior and junior counsel to25 the Inquiry, in a neutral way to elicit those witnesses'

211 knowledge and understanding of the facts. I do not2 propose that they should be examined at that stage by3 any counsel who may be permitted to represent them or4 cross-examined by counsel who may be permitted to5 represent any other person or organisation.6 I wish to emphasise that the hearing of evidence7 will take place in two quite separate and distinct8 stages, with a period of adjournment between them. The9 first stage will be devoted to obtaining in a neutral10 way, by counsel to the Inquiry, an account of the events11 which took place from those who took part in them.12 After the first stage there will clearly be13 particular issues relating to the death of Dr Kelly14 which I will have to consider with particular care, and15 in the course of the evidence which is given in the16 first stage various discrepancies and unanswered17 questions will no doubt arise which I will also have to18 examine very carefully. In addition, evidence may be

19 given of decisions and conduct on the part of20 individuals which may subject them to criticism.21 After the first stage of the Inquiry has been22 completed in the way which I have described and the23 transcript of the evidence is available to everyone,24 I will adjourn to consider what points and issues should25 be subject to closer and more rigorous scrutiny and

221 I will notify the relevant persons of possible2 criticisms which I consider might be made of them.

3 After an appropriate period of adjournment, the4 second stage of taking evidence will begin. I will ask


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5 the persons whom I have notified of possible criticisms6 to come back to the Inquiry so that they may be examined7 further by counsel to the Inquiry, and I then propose to8 give counsel who may represent them the opportunity to9 examine them and may allow counsel for persons or bodies

10 who have an opposing view to that expressed by a witness11 to cross-examine that witness, but the extent of that12 examination and cross-examination will be confined to13 what I think is helpful to the Inquiry. I consider that14 this procedure will protect witnesses who may be subject15 to criticism and will ensure fairness, whilst ensuring16 that the Inquiry proceeds with the necessary expedition.17 I will also consider before the commencement of the18 second stage whether I should call witnesses additional19 to those whom I had previously indicated I intended to20 call. I make it clear that in the second stage I may21 call witnesses who had not been called in the first22 stage and against whom there may be no criticism.23 It is my intention that documents which are put into24 evidence will be speedily available to other parties.25 But as this is not a trial between opposing parties I do

231 not propose to disclose in advance documents or witness2 statements given by one party to the Inquiry to other3 parties.4 I will of course be ready to consider any5 submissions made to me in the course of the Inquiry and6 I will keep the procedure under review to ensure7 fairness.8 As has already been stated in a press release from9 the Secretary to the Inquiry, it is my intention to10 conduct this Inquiry in public unless considerations11 such as those of national security require me to sit in12 private. Unless such considerations arise, it is13 important that the public should know every word of14 evidence which is spoken at this Inquiry and should know15 the full contents of every document which is referred to16 in evidence. The press will be able to report to the

17 public everything which takes place, every word which is18 spoken by a witness, every question put to a witness by19 counsel and the contents of every document. A full20 transcript of what takes place will be available to the21 public and there will be a website to which everyone22 will have access for the transcript of the day's23 hearing. I have also decided that this opening24 statement by me will be televised and the addresses of25 counsel will be televised. I will hear an application

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1 later this morning as to whether witnesses giving2 evidence should be televised.


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3 Ladies and gentlemen, I propose to rise now for4 a short time and then I will sit again and will hear5 applications for representation and also I think an6 application from you, Mr Robertson.7 MR ROBERTSON: Yes.

8 (11.35 am)9 (Short Break)10 LORD HUTTON: Yes.11 MR DINGEMANS: Lord Hutton, I appear with my learned friend12 Mr Knox as counsel to the Inquiry. My learned friends13 Mr Gompertz and Mr Beer appear for the Kelly family. My14 learned friend Mr Sales appears for the Government. My15 learned friends Mr Caldecott and Ms Palin appear for the16 BBC. My learned friend Ms Campbell appears for17 Ms Watts. And my learned friend Mr Pleming appears for18 the authorities of the House of Commons. My learned19 friend Mr Robertson appears for ITN, and my learned20 friend Mr Robertson has an application.21 LORD HUTTON: Mr Robertson, just before I hear you I think22 I would like to tell counsel the way in which I intend23 to proceed and I very much welcome your assistance,24 Ms Campbell and gentlemen.25 As I have stated, I propose to sit again on Monday

251 11th August. As I also stated, I propose that the first2 witness will be a Government official who will be able3 to give evidence on Dr Kelly's expertise on chemical and4 biological warfare, of the nature of his employment in5 the Government, as to whether he was employed by the6 Foreign and Commonwealth Office or by the Ministry of7 Defence, and also of his knowledge of and any part which8 he may have played in the preparation of the September9 dossier.10 Then I would propose to call Mr Andrew Gilligan,11 then Ms Watts of the BBC and Mr Gavin Hewitt of the BBC.12 Then I would like to hear a witness from the BBC to13 state the reasons why the BBC declined to say that14 Dr Kelly was the source of the reports until after his

15 death. Then I would propose to hear witnesses from the16 Ministry of Defence and other Government departments as17 to the discussions which took place and the decisions18 that were taken when it became known that Dr Kelly had19 had a meeting with Mr Gilligan.20 I would propose to sit from 10.30 am until 1 pm and21 then in the afternoon from 2 pm to 4.15 pm on Monday to22 Thursday. I do not propose to sit on Friday because23 I think that day will be necessary for reading written24 material and for preparation for the next week's work.25 I should also say, Ms Campbell and gentlemen, having

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1 indicated that in the first stage of the Inquiry the2 witnesses will be examined only by Mr Dingemans and3 Mr Knox, I appreciate that some of you may not wish to4 be present all of the time. Certainly I have no5 objection whatever to that. It is entirely a matter for

6 counsel as to the times when they wish to be present.7 Unless there is any other matter that counsel wishes8 to raise, Mr Robertson I gather you have an application9 to make.10 Application by MR ROBERTSON11 MR ROBERTSON: Yes, indeed. Good morning, sir.12 This application is made on behalf of several13 broadcasting organisations who wish to televise portions14 of your Public Inquiry. But may I make clear at the15 outset that they do not wish to televise all of it.16 LORD HUTTON: Yes.17 MR ROBERTSON: They understand and utterly respect the18 wishes of Dr Kelly's family and friends and do not seek19 to cover their evidence, nor the testimony of anyone20 else who may regard the presence of cameras as an21 intrusion into private grief or as imposing an unwanted22 burden of stress. What I might call, sir, the coronial23 aspects of your Inquiry they do not seek to cover. That24 will include, of course, you mentioned calling Thames25 Valley Police officers and doctors who had examined the

271 body. That entire coronial area, if I may describe it,2 is not sought to be covered.3 There is however a class of witnesses, I will4 endeavour to define the class a little more closely5 later on, who may accept and indeed may even welcome the6 television coverage of their evidence. It is a class7 who have already spoken on television about these events8 or who are otherwise familiar with the medium through9 their role in public life or indeed in broadcast10 journalism, and in respect of whose evidence television11 coverage we believe will be beneficial for the Inquiry12 itself, will assist fairness, which you so rightly

13 stress, and will assist this Inquiry to deliver on the14 purpose for which it was established. It is in respect15 of that class of witness and in respect of certain16 applications which we believe are likely to be made that17 we respectfully seek to persuade you today not to shut18 out at least the prospect of television coverage.19 Sir, may I begin by identifying the parties that20 I represent?21 LORD HUTTON: Yes. I am very grateful to you for giving me22 a sight of your argument in written form. That is very23 helpful to me.

24 MR ROBERTSON: It will prevent me from repeating it,25 certainly prevent me from citing any legal authority


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281 because I know you have read Dame Janet Smith's decision2 in the Shipman Inquiry, which is perhaps the closest3 precedent. I think you have it in a blue file.

4 LORD HUTTON: Yes, I have it, yes.5 MR ROBERTSON: The application begins with the skeleton6 argument. Then if I can just identify for you the7 parties.8 The first party that I represent -- I represent two9 major parties: ITN, Independent Television Network; and10 Sky Television. But the ITN network comprises, first of11 all, ITV News, and there is a statement by Mr Mannion,12 who is the editor of ITV News, at tab 2. He explains13 that ITN News is watched by some 10 million people in14 this country. It is at tab 2. Interestingly enough,15 and this is the second and very important aspect of the16 application, ITV has a news channel that has the17 opportunity of very comprehensive coverage. At18 paragraph 8 of Mr Mannion's witness statement, page 2 at19 tab 2, he says that on the news channel we would20 broadcast the proceedings live for considerable periods.21 "Live" I will put in inverted commas because22 obviously there will be a protocol that will provide for23 delay if your Lordship would accede to my application.24 But in short we give a commitment that if proceedings25 are open to the cameras, the public will be able to see

291 a significant part of the proceedings. If the Prime2 Minister gives evidence, no doubt that channel will show3 it all and not interrupt it or cut it in any way4 Sir, so those are the two -- there is the major news5 channel with 10 million viewers and there is, as it6 were, the round the clock news channel that offers to7 put the entire evidence of a witness on television.8 Then, the next part of ITN is Channel 4 News. That9 is tab 3, Mr Gray. There is a supplementary statement10 from Miss Burn. That is an hour long news at 7 o'clock

11 in the evening. It has 1 million viewers.12 Interestingly, your Lordship will know of course that13 Mr Campbell, whom your Lordship is going to call, chose14 that to speak about these matters rather than to write15 the article for which his professional training would16 obviously qualify him to write. He chose television.17 That with very good reason, as I hope to explain.18 Channel Five News is the fourth aspect of ITN.19 Mr Rogers, at tab 4, explains that they have round the20 clock news bulletins.21 There is, although it is not covered by a witness

22 statement, I can tell your Lordship it as an23 interesting, as it were, variant on my application,


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24 I act for IRN Radio. Lord Phillips in his Inquiry was25 minded to allow certain radio but not television

301 coverage. So there is, as it were, a supplementary

2 application by radio to have radio coverage or radio3 tapes.4 My Lord, the other applicant is Sky News. That is5 in the statement of Mr Pollard at tab 5. He too6 explains that Sky has two services that would be7 concerned to broadcast. One is their regular 24-hour8 news channel, at paragraph 2, available unencrypted9 via satellite cable and digital terrestrial television10 and available unencrypted in over 80 countries11 throughout the world. Your Lordship will know this12 Inquiry has, for legitimate reasons, interested many13 countries beside the citizens of Great Britain, and Sky14 is there in a perfect position to provide the15 information.16 In paragraph 5 he says that as Sky is a 24-hour news17 channel:18 "...we would intend to broadcast the evidence of key19 witnesses live as part of our daily programming. In20 addition, we would seek to make available the coverage21 of the entire Inquiry [subject of course to what I have22 said] available to satellite viewers via the Sky News23 Active channel. This would enable those viewers with24 a particular interest in the issues to follow the whole25 of these important proceedings ..."

311 So that both ITN in its ITV News channel and2 Sky News through its Sky News Active channel can provide3 comprehensive coverage of a witness, in other words the4 whole of a witness' evidence can be covered and can be5 transmitted.6 Sir, they are the parties that I represent. On7 their behalf could I begin by expressing their gratitude8 for your invitation to make these submissions. That

9 invitation contained in your letter of 28th July to10 Mr Wood, who is the chief executive of ITN. I shall not11 repeat in these submissions those points he made to you12 in his letter of 25th July.13 LORD HUTTON: Yes.14 MR ROBERTSON: Or indeed press upon you Dame Janet Smith's15 decision in the Shipman case, which I know you have16 considered.17 LORD HUTTON: Yes.18 MR ROBERTSON: That, of course, was an Inquiry under the19 1921 Act and it was into a very different kind of

20 tragedy, a form of mass murder, one which had21 implications for police and for the medical profession,


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20 Firstly, that you would accept, sir, that the21 presence of television cameras will not cause any22 disruption to your proceedings. I am sure you will23 accept that; you have had the camera in court this24 morning.

25 LORD HUTTON: Yes.

341 MR ROBERTSON: And that has been the general view of those2 who have television coverage, that the physical presence3 of television cameras will not cause disruption.4 Secondly, that what is sought is not live coverage,5 but would be subject inevitably to protocols of the sort6 that the Scottish Court of Appeal in the Lockerbie7 appeal and Dame Janet in the Shipman Inquiry imposed.8 Sir, can I simply refer you to -- I think it is at9 tab 7 -- Mr Wood's letter.10 LORD HUTTON: Yes.11 MR ROBERTSON: Then at the end of the four page letter there12 is the broadcasting protocol. The first is the pilot,13 which worked very well and was repeated for the main14 one. But your Lordship will see at paragraph 17 the15 kind of protocols that Dame Janet imposed. At 17:16 "Sound and images will be provided on a ...17 basis~... [where]:18 "The general principle ... only the individual19 speaking ... the chairman, counsel ... legal20 representatives ..."21 So there is no, as it were, circling the court to22 look for people in the back row or interested people who23 might be picked out. No camera views will be taken in24 a way that looks over counsel's shoulders and enables25 documents to be read. If the witness becomes

351 distressed, the camera immediately switches to a wide2 angled view. No sound when the hearing is not in3 session. No filming other than in public hearing. No4 members of the public shown. Cameras will not give any

5 coverage to a disturbance.6 Then in paragraph 18:7 "... fair reflection of the nature of proceedings8 and the issues ..."9 19, importantly:10 "The chairman may instruct that certain parts of11 recorded material must not be recorded or broadcast. In12 such circumstances the relevant section of the recording13 must be physically erased ..."14 LORD HUTTON: You referred, in paragraph 17, to if a witness15 becomes distressed then the camera will switch to a more

16 general view. But that means that the person's17 distress, the beginning of the distress, is shown on


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18 television or may be shown, which may cause considerable19 embarrassment to that person.20 MR ROBERTSON: Of course I accept that. That is why the21 protocol I suggest is a one hour delay. I think we will22 come to that. Clearly we will see there is a one hour

23 delay so any witness who did become distressed, it is24 difficult to envisage that Mr Campbell or Mr Gilligan or25 the Prime Minister would become distressed, and those

361 who would become distressed of course would be mainly in2 the coronial area. But if it were, then 19 would no3 doubt come into play. Your Lordship would no doubt4 instruct the physical erasion of that recorded material.5 Then 20, the condition that none of the recorded6 material may be used in humour, satirical or fiction7 drama programmes and so forth.8 Then material proposed to be used subsequently would9 be subject to your prohibition and so forth.10 There is the other protocol often used which is that11 there is a delay, usually of half an hour or an hour, so12 that if there is anything untoward, any matter of13 national security that one does not want to have a wider14 application, then as chairman you would obviously stop15 that televising and order erasure. So that protocols,16 and there are many of them, that is just one example,17 can ensure that television does not in any way affect18 the smooth running of the Inquiry or indeed cause any19 undue burden to any witness.20 So that is the second matter that I take for21 granted.22 The third matter that I take for granted and will,23 in fact, address is what your Lordship said this morning24 in your final paragraph, that obviously every word25 spoken at this Inquiry it is important that the public

371 should know, and that the press will be able to report2 everything that takes place.

3 My submission is that it is important not that the4 public should read every word of evidence but they5 should hear the tone of voice in which that evidence is6 delivered, see the body language and demeanour of the7 witness who is speaking it, because very often, as one8 knows, tone of voice, demeanour and so on may give9 a very different impact and truth to a particular10 utterance, and very often it alters it considerably. In11 order to appreciate evidence, as your Lordship knows,12 the Court of Appeal are always saying: well, the trial13 judge saw the witnesses.

14 LORD HUTTON: Yes.15 MR ROBERTSON: There was the story, I think it was the


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16 Australian judge who delivered the impeccable summing-up17 but his body language showed him pulling a chain and18 holding his nose. That is an obvious example. We19 nonetheless say that to understand evidence accurately20 and truthfully one needs to see it being delivered.

21 LORD HUTTON: But let us take a civil servant who is not22 used to appearing on television, perhaps a middle23 ranking civil servant. He is aware that his tone of24 voice and body language may be studied or people may25 draw inferences and conclusions not just from what he

381 said but the way he said it. Does that not impose very2 considerable strain on him?3 MR ROBERTSON: It may well. We are not suggesting we have4 a right to cover every witness. We would suggest, with5 great respect, that your Lordship may enquire of each6 witness in the, as it were, constitutional stage,7 whether they have any objection to being televised. We8 believe or understand that a number of important9 witnesses would welcome being televised, for reasons10 that I will go into. But obviously if a witness feels11 that they would be inhibited by being televised then12 your Lordship would simply not permit them to be13 televised, and there would be a number of witnesses14 probably falling in that category.15 LORD HUTTON: But that might, in itself, place considerable16 strain on a witness if he were asked were he willing to17 be televised, he knew that some of his colleagues were18 saying that they were, but he had reservations. It is19 somewhat difficult, is it not, to pick and choose20 between witnesses? And then if you have some witnesses21 who say, "I am willing to be televised", and others, for22 quite valid reasons, saying they are hesitant about it,23 you may have inferences drawn: oh well, that witness who24 was not prepared to be televised, there must be25 something rather dubious about his evidence.

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1 MR ROBERTSON: Sir, exactly. You would want to avoid,2 I accept fully, any invidious comparisons.3 LORD HUTTON: Selections, yes.4 MR ROBERTSON: Which is why we would invite you to5 distinguish certain classes of witnesses. The class of6 witnesses comprising the Cabinet Minister, the7 politician and those familiar with the medium and indeed8 the broadcast journalists, the BBC figures, we say would9 fall into the class where one should require television10 unless they are venturing into matters of national11 security. It may be that other classes of witness one

12 would not or would at least enquire of them. But those13 who have a measure of public accountability built into


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14 their role, such as the Prime Minister and Mr Hoon and15 Mr Campbell and the BBC broadcasters who, of course, are16 adept at the medium and will be talking to an extent17 about the ethics of the medium, would fall into a class18 where one would expect them to give evidence.

19 Your Lordship's comment that the press will be able20 to report to the public everything that takes place,21 I will seek to persuade your Lordship that the press,22 while able to report to the public, will not, in23 practice or in fact, report to the public everything24 that takes place. I will seek to explain why the25 reporting by way of television is more satisfactory as

401 a measure of fairness than leaving the matter entirely2 to the print medium.3 But could I simply and shortly list the 10 points4 that we say collectively may persuade your Lordship to5 reconsider your initial view?6 LORD HUTTON: Yes.7 MR ROBERTSON: The first point is that television companies8 are entirely unlike the print medium in this country9 because they are bound by strict statutory duties. One10 finds those duties in the Broadcasting Act. I wonder,11 can I hand up to your Lordship, because it was not in12 our original bundle, the Broadcasting Act of 1990.13 Section 6 contains the general requirements.14 Your Lordship sees that.15 Your Lordship sees the Commission must do all they16 can to secure that every licenced service, we are17 dealing here with applicants only from licenced18 services.19 "(a) Nothing included in programmes offending20 against good taste or decency."21 That is not perhaps relevant. But:22 "(b) That any news given in whatever form in its23 programmes is presented with due accuracy and24 impartiality."25 That is 6(b); and (c):

411 "Due impartiality is preserved on the part of the2 person providing the service as respects matters of3 political or industrial controversy or relating to4 current public policy."5 The Act goes on to enforce and to develop through6 codes. the ITC programme code is a very detailed set of7 requirements for ensuring that news and current affairs8 are presented both accurately and impartially. Indeed,9 there is a special provision of the Broadcasting Act

10 which requires there should be no editorialising on11 television.


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12 LORD HUTTON: Yes.13 MR ROBERTSON: So those statutory duties on the broadcasters14 which are enforced by both the Authority, which has15 powers -- I think one broadcaster, whom I do not16 represent, was fined 1 million for putting out a false

17 current affairs programme. There are very heavy fines18 and the possibility of loss of licence as a punishment19 if there is no due accuracy and impartiality.20 So that sets television aside and is a guarantee of21 what your Lordship was so concerned to ensure, namely22 fair treatment of your witnesses. So that, of course,23 is not a requirement of any kind that is binding on the24 press. One may have tabloid television but not in25 relation to news or current affairs. There is no

421 tabloid treatment of news or current affairs or at least2 no distorted treatment of news or current affairs thanks3 to those duties. That is the first point that I make.4 LORD HUTTON: Yes.5 MR ROBERTSON: My Lord, the second point that needs to be6 brought into play is the fact, and it is a fact, that7 most people in this country obtain their knowledge of8 current events and news from television and not from9 newspapers. The latest survey puts that at 65 per cent10 of people get their news from television not from print.11 There is another study saying 70 per cent.12 It is clear, we say, that television is the prime13 purveyor of news. It purveys it in a form that permits14 its viewers seeing tone and body language to understand15 the reality of that evidence.16 My Lord, I would ask your Lordship to consider what17 will happen to your Lordship's Inquiry if television is18 not permitted. 70 per cent of the British public will19 get their news of your Inquiry from television, but how20 will they get it? They will get a somewhat breathless21 young reporter, maybe middle aged reporter, standing22 outside the High Court announcing that today at23 Lord Hutton's Inquiry the Prime Minister said such and

24 such, and a few words and phrases will be picked out of25 the witness' evidence. There will then be what I have

431 to describe as a cartoon sketch of your Lordship and the2 witness. It will be a caricature because artists will3 not be allowed in court, but there are artists,4 your Lordship will be familiar of seeing them.5 LORD HUTTON: I have seen them before, Mr Robertson, yes.6 MR ROBERTSON: So that will be the voiceover of the7 breathless reporter will be imposed --

8 LORD HUTTON: I think you are being a little unfair on some9 of the reporters. I appreciate it is advocate's


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10 licence.11 MR ROBERTSON: Yes. Then there will be a scroll down one12 side where certain phrases will be scrolled down the13 screen, perhaps so or perhaps not. That will be the14 treatment that will have to be delivered by the main

15 news media if television cannot do it live. How much16 better, one says rhetorically and entirely, would it be17 if instead of "Mr Hoon said this" or "the Prime Minister18 said that" over a cartoon, if the Prime Minister was19 seen saying it in a particular tone of voice, with20 a particular demeanour; the public would see it as it21 happened and not through an artist's impression, or not22 with the assistance of an artist's impression.23 So the second point that I would invite24 your Lordship to consider is simply that the main news25 of your Lordship's Inquiry would, in respect of

441 constitutional, important witnesses, be received in2 a more truthful and accurate way if they were seen live3 than in the way that I have described, which is the only4 way that television can deal with an Inquiry from which5 it is excluded.6 My Lord, the third matter, which is also not often7 appreciated but there is very recent evidence that8 endorses this, is that television is the most trusted9 media of communication. It may be somewhat unpalatable10 for newspapers but the trust, of course, of the public11 stems from two matters: firstly, probably, from the due12 impartiality duties that I have shown your Lordship in13 the Broadcasting Act; but, secondly, it, of course,14 comes from television's capacity as a medium to show15 things as they really are. The phrase that "a picture16 is worth 1,000 words" may be an exaggeration, but it17 does get at an essential truth; that in a cynical world,18 which knows how words can be spun this way and that,19 just how important it is for the public to see and hear20 what actually went on and not, as it were, a second-hand21 report.

22 Your Inquiry, we would respectfully submit, would23 not only have more impact but would have more respect if24 it could be seen to be at work rather than reported to25 be at work through the newspapers.

451 Those matters, if I could hand up the very latest2 report, it is by the Broadcasting Standards Commission3 and the ITC, who are the two regulators, and they retain4 Professor Hargreaves, who is a professor of journalism,5 and others to do the research. I have taken the liberty

6 of flagging, at page 22, the latest data on the question7 of trust.


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8 LORD HUTTON: Yes.9 MR ROBERTSON: The data shows that journalists, as a group,10 are not highly trusted as truthful sources of11 information, but television newscasters are. Television12 brands are well trusted; and the survey suggests that

13 television news is trusted to tell the truth by14 85 per cent of people. There are different matters.15 Then, at page 44, at the bottom:16 "Television news is now the only news medium17 available, used, trusted and valued across the whole of18 British society. 65 per cent [That is the source of my19 65 per cent of the British public.] say they regard20 television as their main source of news, compared with21 16 per cent radio, 15 per cent newspapers."22 Word of mouth is 1 per cent. But in terms of source23 there it is.24 At page 49:25 "Are we satisfied with the news we get? A number of

461 questions were asked to gauge of the level of2 satisfaction about broadcasters. 95 per cent were3 either very or fairly satisfied with broadcast news,4 90~per cent for current affairs."5 Then at page 50 it does note, and this is important6 in relation to the two networks, or two that are7 prepared to as it were give themselves over to cover the8 entirety of a witness' evidence, the message is that9 24-hour television services are forming an increasingly10 important part of the news landscape, especially for11 those who work unsociable hours and so on. 34 per cent12 have access. Then at 51:13 "24-hour television news values it", for those14 reasons.15 Then at 73 at the bottom:16 "Trust in truthfulness. Viewers who consider a news17 provider to be impartial might be expected to trust that18 provider to tell the truth. We know from Mori that19 sharp distinctions are drawn between professional

20 groups. The survey suggests that people are more21 confident they get the truth from news providers."22 Then at page 75, Channel 4 News is admired for its23 seriousness, Channel Five News is liked for its speed24 and liveliness.25 At the top of that page, page 75, there is an

471 interesting comment that:2 "Among non-broadcasters [this is the second3 paragraph] 29 per cent of the whole sample regard

4 The Guardian as truthful but this figure rises to5 65 per cent when non-readers are excluded. So


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6 65 per cent of The Guardian's readers regard it as7 truthful. For the Sun, comparable figures are8 11 per cent and 21 per cent, so only one in five of9 the Sun's readers regard it as truthful on that survey.10 But that is an interesting comment on the way in which

11 television is not only the most trusted medium but is12 the medium by which most people get their news. We13 would respectfully urge that medium is the one that14 the Inquiry should permit to cover.15 The fourth point, and I say this without any16 criticism of the press, is that distortion is inevitable17 in the nature of modern newspapers. It is no criticism18 of them to say that they simply cannot provide a fully19 accurate coverage. When your Lordship says that the20 press will be able to report everything, every word, the21 fact is that newspapers are lacking in space to provide22 that and, inevitably, they can only cover the highlights23 of evidence.24 LORD HUTTON: But if one considers what is possible to be25 shown on the main news programmes, the 10 o'clock News

481 and ITV News, and one compares that can what will be2 published in the broadsheets, will it not be the case3 that the broadsheets will have much more detail than4 possibly five minutes' presentation? That must be so.5 MR ROBERTSON: My Lord, first of all, it is not so with the6 24-hour; the two, the Sky and the ITV active services,7 will cover the whole evidence.8 LORD HUTTON: Yes.9 MR ROBERTSON: I would have thought that in terms of10 Channel 4 News we are talking about 20 minutes.11 Certainly if it is the Prime Minister they might devote12 the whole hour to that. So in respect of the News at 1013 or the Channel Five News, of course you will get 4 or14 5 minutes. That may be as much coverage as you would15 get in the Daily Mail, and rather more than you would16 get in the Mirror. But it is, nonetheless, I accept17 entirely, that in some respects some television news

18 coverage would not be greater, although it would be more19 accurate because it shows the demeanour and so on.20 LORD HUTTON: What percentage of viewers would watch the21 rolling 24-hour news?22 MR ROBERTSON: 34 per cent, according to that comment, do23 watch the rolling news services.24 LORD HUTTON: That is at page 50.25 MR ROBERTSON: One remembers, I do not suppose one recalls,

491 I think President Clinton's invigilation by Mr Starr was

2 shown by Sky News live, I think with a delay, a short3 delay.


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4 LORD HUTTON: Yes.5 MR ROBERTSON: But that, certainly on Sky and CNN, attracted6 viewers who watched the whole thing.7 LORD HUTTON: Yes.8 MR ROBERTSON: The other reason for inevitable distortion

9 are headlines, which of course, as your Lordship knows,10 by virtue of the short space, can only encapsulate11 a phrase. So that with the best will in the world12 newspapers, one dimensional, no body language or13 demeanour, have to use headlines, which may be14 misleading. Headlines often are misleading; and may not15 have the space to give the extended comprehensive16 coverage that those two television channels and indeed17 radio can.18 That is the fourth point, that the print medium has19 these built in deficiencies that television does not.20 The fifth point, particularly important given21 your Lordship's concern for fair play and fairness, and22 I am sure the concern of many of your witnesses, is,23 I would put under potential press bias. Many newspapers24 have taken an editorial line already on the25 responsibility for Dr Kelly's death. Some have blamed

501 what they call the star chamber of the Select Committee.2 Others have pointed a finger at the Prime Minister and3 Mr Campbell, or indeed the BBC or the MOD. That is the4 editorials.5 Columnists have expressed, as they are entitled to,6 very trenchant opinions on these matters and will no7 doubt continue to do so throughout the evidence.8 Your Lordship has no contempt powers. This is, with9 respect, very important, because your Lordship is not10 a 1921 Tribunal and so a partisan newspaper with11 a partisan editor or proprietor can, the day after12 a witness appears before you, blackguard that witness13 and say what a pack of lies he or she told and there is14 no redress.15 However, there is a redress, and that is to show it

16 all on television and let the public see and make up its17 own mind against the danger of partisan distortion that18 one has with a media that, perfectly properly in terms19 of freedom of expression, has expressed its views.20 That is why the problem that witnesses may face is21 that the reports of their evidence are going to be22 printed framed with these built in biases of the23 newspapers. There will be editorials, there will be24 columnists and inevitably the report, however fair and25 accurate it is, could take on for readers a certain

511 colour. And the value of television is that it is bias


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2 free. It cannot editorialise; statute prevents it from3 editorialising. It does not have columnists. It does4 not have that power to prejudice people. It does not5 have that pre-determined framework.6 That, we suspect, is why a number of important

7 witnesses on constitutional issues would prefer to have8 their evidence seen, available, as it was given on9 television rather than, in their view, distorted by10 columnists or editors in the press. So that it may well11 be that were your Lordship to ask a number of your12 witnesses, they would wish to do that.13 That is the fifth point. That television is14 unbiased and that fair play may well require that15 a witness testify in public, on television.16 My Lord, the sixth point quickly is really one17 I draw from Wigmore's famous formulation. It is at the18 last page of our skeleton argument. It applies with all19 the more force to television, his classic statement of20 the value of open justice, its operation intending to21 improve the quality of testimony is twofold.22 Subjectively it produces in the witness' mind23 a disinclination to falsify, firstly by stimulating the24 instinctive responsibility to public opinion symbolised25 in the audience.

521 Of course, as you know, there are only a limited2 number of seats in this court; and the audience is not3 very large. But when the audience can be the entire4 country, through comprehensive television coverage,5 Wigmore's first point is all the more enhanced. The6 witness, knowing that television is taking his evidence7 or her evidence throughout the world will, firstly,8 testify with that instinctive responsibility to public9 opinion that one hopes we get from public figures.10 And the second point Wigmore makes is the safeguard;11 objectively it secures the presence of those who may12 possibly be able to furnish testimony in-chief or to13 contradict false fires and yet may not have been known

14 beforehand to the parties to possess any information.15 This is at page 18.16 LORD HUTTON: Yes.17 MR ROBERTSON: That is the second safeguard, that witnesses18 are more inclined to tell the truth if they know that19 someone, somewhere, be it Birmingham or Baghdad, will be20 able to come forward if they know that lies are being21 told and confirm them. The Blom-Cooper Inquiry in22 Antigua, which was looking at very serious corruption in23 ministers, records that exactly that happened, that24 a vital witness came forward -- they had not intended to

25 testify, it was only when they saw a lie being told on


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531 television that they came up with evidence that in fact2 led to the dismissal and prosecution of a government3 minister.4 LORD HUTTON: Yes.

5 MR ROBERTSON: My Lord, that is the sixth point.6 LORD HUTTON: Yes.7 MR ROBERTSON: The seventh point is one I am sure8 your Lordship is well aware of, the open justice9 arguments that are in our written submissions.10 LORD HUTTON: Yes.11 MR ROBERTSON: I will not repeat them, other than by12 reference to the two great Scott v Scott principles:13 every court in the land is open to every subject of the14 king. Of course, as your Lordship will bear in mind,15 there may be many people from Scotland or indeed from16 Northern Ireland who would wish to come and see17 your Lordship's Inquiry and will be able to do that in18 relation to important witnesses by witnessing their19 evidence on television because they cannot come over to20 see it.21 LORD HUTTON: Those principles are stated, of course, before22 the days of television. There is the consideration that23 under the relevant Act, television is not permitted into24 an ordinary trial or an ordinary hearing. So that25 principle has to be read, I think, against that

541 background.2 MR ROBERTSON: Yes, of course. The 1925 Act was passed3 because I think someone -- flash photography of4 Dr Crippen in the Old Bailey dock. It it relates to5 flash photography. That has been taken to relate to6 television, as Dame Janet said.7 Your Lordship will be aware a number of the Scottish8 courts, for example, have allowed televising of appeals,9 some under protocol, some actual criminal trials where10 the defendants agree. My clients, at the moment, are11 discussing in fact a pilot project of televising the

12 Court of Appeal.13 LORD HUTTON: Yes.14 MR ROBERTSON: One is aware that certainly there are aspects15 of your Lordship's House of giving judgments which are16 televised. This is a live issue.17 LORD HUTTON: Yes.18 MR ROBERTSON: Whatever the inhibitions obviously on trials,19 because one has juries to consider, Public Inquiries --20 there have been a number of Public Inquiries that have21 embraced television, not only the Shipman Inquiry and22 Public Inquiries in this context, or the Blom-Cooper

23 Inquiries into corruption in the Caribbean, Lord Mackay24 of Clashfern spoke highly of television coverage of his


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25 Inquiry into the Trinidad judiciary. That was an

551 Inquiry which involved the examination of the Chief2 Justice and a number of judges and the Attorney General.

3 Lord Mackay permitted television coverage of that --4 LORD HUTTON: Was that a Public Inquiry?5 MR ROBERTSON: Yes.6 LORD HUTTON: Were members of judiciary called and to give7 evidence in public before Lord Mackay?8 MR ROBERTSON: Yes, indeed. I was his counsel on that9 occasion and examined them in public; and the entire10 examination was broadcast on television every night.11 And Lord Mackay in his report indicated that there had12 been a great deal of public interest in it. It had13 arisen from a dispute between the Attorney General and14 the Chief Justice.15 LORD HUTTON: Yes.16 MR ROBERTSON: There was also the Fiji case where17 your Lordship will remember an armed coup took over and18 a government was installed, and the Fijian Court of19 Appeal, comprising five international judges, had to20 decide whether the military backed government was21 legitimate. It was again a decision to allow television22 by three to two. One of the dissenting judges wrote23 subsequently that the televising of this24 constitutionally important case had entirely vindicated25 the stance of the majority because of the public

561 importance of the issues.2 The other aspect of open justice is of course3 Jeremy Bentham's point that it keeps the judge while4 trying under trial. It would provide reassurance to the5 public that so far as is humanly possible6 your Lordship's Inquiry is endeavouring to find the7 truth about these matters.8 So that is the seventh point. The application, if9 you like, in particular force of the open justice

10 principles to televising inquiries.11 LORD HUTTON: Yes.12 MR ROBERTSON: My Lord, the eighth point again we have13 covered in the submissions so I do not need to do more14 than outline it. It is the Article 10 point. I have15 had some discussions with Mr Dingemans about whether16 your Lordship is sitting as a public authority. I would17 venture, respectfully, to suggest that you are, given18 the very broad definition of public authority in the19 Human Rights Act section 6(3)(b).20 "Public authority includes any person certain of

21 whose functions are functions of a public nature."22 On that basis, we would suggest, it does define


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23 your Lordship's role in this Inquiry; this Inquiry24 indeed is serving functions of a public nature.25 LORD HUTTON: Dame Janet Smith's opinion was that Article 10

57

1 was not engaged.2 MR ROBERTSON: It was. It was interesting because there was3 there a split between her independent advice from4 Mr David Pannick to the effect that Article 10 was5 engaged --6 LORD HUTTON: Yes.7 MR ROBERTSON: -- and the view of counsel for the Government8 that it was not.9 LORD HUTTON: Yes.10 MR ROBERTSON: If your Lordship were or is a public11 authority for the purposes of section 6 then, of course,12 Article 10 comes into play; and even if your Lordship13 were not a public authority, it may be that you would14 wish to follow the freedom of expression. Indeed,15 your Lordship has indicated this morning that that is an16 important matter.17 LORD HUTTON: Yes.18 MR ROBERTSON: I simply note, firstly, that the European19 jurisprudence Lingens, Castells and so on, does say that20 it is of vital importance in respect of political and21 public figures that political and public figures have22 less right to privacy and to shield themselves from the23 media than do private people.24 LORD HUTTON: What is the reference? Are there paragraphs25 you can refer me to in those cases?

581 MR ROBERTSON: I will give them to you precisely, if I may.2 LORD HUTTON: Yes, that would be helpful.3 MR ROBERTSON: It is a passage in Castells v Spain and4 Lingens v Austria to the effect that public figures have5 less right to, as it were, privacy or to avoid exposure6 than others; and that assists with the category that7 I have indicated may be appropriate for televising.

8 The other aspect is the exceptions in 10(2).9 Your Lordship would have to be satisfied that the10 shutting out of television was necessary in the11 democratic society and proportionate in respect to12 Article 10(2) exceptions. And the only exception that13 would seem to be appropriate, subject to national14 security of course, which we fully accept, would be15 protecting the rights and reputations of others.16 LORD HUTTON: Yes.17 MR ROBERTSON: But while we say that we accept that, that we18 have no desire to televise the coronial witnesses, that

19 exception must be narrowly construed. One has to bear20 in mind the question of whether the restriction is


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21 necessary in democratic society. We would submit that22 democratic society thrives on the public being given the23 most accurate information possible about these matters24 of high importance. So that is the eighth matter.25 The ninth matter is the importance of an historic

591 record. One goes to the Auschwitz museum or the2 Holocaust museum and sees the late Sir Hartley Shawcross3 speaking at Nuremberg, and sees Goering being4 cross-examined.5 One sees international tribunals now all permit6 a television record. It is important, when the7 consequences of your Lordship's Inquiry may be of8 enormous or very great constitutional significance, it9 may lead to the passage of law protecting whistle10 blowers, it may redefine the role of the constitutional11 position of the security services and the issue of their12 independence from Government. Then a visual annex, as13 it were, having a record, an historic record of the14 statements by Ministers of the evidence given by15 Ministers to this Inquiry has a value of itself; and it16 is not evidence that would be available some time in17 a public records office, it would be a visual and18 historic record of the witnesses speaking as to19 constitutional matters.20 My Lord, the tenth matter, finally, is this: that21 your Inquiry will appear on television anyway, just as22 Lord Scott's Inquiry into the Matrix Churchill trial and23 Sir William McPherson's Inquiry into the Stephen24 Lawrence killing appeared on television. It appears by25 way of what is called a dramatic re-enactment. It

601 usually begins as a play put on at a theatre in North2 London, and then transfers to I think the BBC, maybe in3 this case to ITV, I do not know. But the participants4 and witnesses are played by actors; and there is nothing5 that one can do to stop this. Indeed, it shows,

6 perhaps, the appetite, legitimate appetite of the7 public, for information beyond the press, beyond the8 bare written words of what happened.9 So in Lord Scott's case a play called "Half the10 Picture" was performed on television with, I think,11 Ms~Sylvia Simms playing Lady Thatcher. Of course it was12 played very well, no doubt; but there is an element of13 mimicry. There is, of course, a large element of14 selection.15 The value of television, of televising Inquiries, is16 that it puts an end to this kind of dramatic

17 re-enactment which, however well intentioned and18 obviously catering to a public interest, cannot be the


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19 truth. The evidence of the Prime Minister, whoever20 plays him, is not seen for really it is, for what it21 was, and not for what a skilled actor with all sort of22 acting abilities embellishes.23 My Lord, this is not a light matter that I am

24 canvassing. It is a matter that I would respectfully25 ask your Lordship to consider. It may appear to

611 the Martian rather bizarre that we live in a country2 where these great constitutional issues are discussed by3 evidence given by public men and women and yet we are4 not allowed to see it, but when we do see it is it is by5 actors mimicking the evidence that was given.6 So that we would say that it is time that television7 was allowed to show the public the real thing~--8 LORD HUTTON: Yes.9 MR ROBERTSON: -- and not have it re-enacted. It could be,10 I do not know, it may be that television will re-enact11 every night. That was done at the -- I think the Pontin12 case that went to Strasbourg. There it was re-enacted13 by newscasters. There would be nothing to stop14 television producers putting Mr Bremner, or whoever, on15 with the transcript and reading the transcript. That16 is, in a sense, what your Lordship would stop by17 allowing the real thing to be.18 LORD HUTTON: Yes.19 MR ROBERTSON: So they are the 10 matters -- I am sure20 your Lordship had some of them in mind, but may not have21 considered them in their collectivity~--22 LORD HUTTON: Yes.23 MR ROBERTSON: -- which makes us urge your Lordship not to24 be afraid of this medium, but you see from the25 affidavits the utter seriousness of the broadcasters;

621 and, as I say, some witnesses would actually prefer2 their evidence to be broadcast (a) to give a full3 account of themes, and (b) to avoid the distortion and

4 prejudice that may arise from the press, particularly5 appropriate where broadcasters themselves may be called6 upon to explain their conduct.7 There is another area that we would urge -- I know8 your Lordship is minded to allow some addresses by9 counsel, but there may be matters of great interest not10 only to law students and politics students in counsel's11 submissions because (a) they may touch the privileges of12 Parliament, an important matter; and even if it is only13 a matter discussed by counsel rather than by witnesses14 the public would be legitimately interested in that.

15 Protection of sources is clearly an important matter,16 given the case of Goodwin v United Kingdom and the


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17 Article 10 protection that the BBC will no doubt call in18 aid. Submissions of counsel on that matter will be of19 value.20 It may be that protection of whistle blowers --21 America and Australia or Canada have special whistle

22 blower legislation that has not come here; but23 discussion of the advantages of a Whistle Blowers Act to24 protect people like Dr Kelly in the future would be of25 great interest.

631 As I say, submissions on the constitutional role of2 the security service and the independence from3 Government would all be of value and would be of4 interest, and would be matters that the television5 companies would wish to show the public being presented6 by counsel.7 So, those two areas -- it may be, of course, that8 your Lordship has identified different stages. It may9 be that stage 2 where individuals will be asked to10 account for themselves and matters of potential11 criticism will be put to them, that individuals, at that12 stage, would very much want to have their answers seen13 and heard rather than reported inadequately or perhaps14 with partisan comment in the press.15 So, my Lord, unless I can help you further, I will16 give your Lordship the references from Castells and17 Lingens.18 All we are asking, at this stage, is for you not to19 shut the door, to keep it open and indeed to consider in20 fact asking witnesses who fall into the two categories21 that I have identified, as those who have a public role22 as politicians and who are, that way, accountable to the23 public; and, secondly, those who are broadcasters, in24 any event, should certainly be invited to accept that25 their evidence will be televised. Obviously, if

641 your Lordship were to leave that door open, then we

2 could return with the appropriate protocols.3 LORD HUTTON: Thank you very much indeed, Mr Robertson.4 Yes. Mr Gompertz, do you have any observations that5 you would wish to make on this?6 MR GOMPERTZ: I have, my Lord.7 LORD HUTTON: Yes.8 MR GOMPERTZ: I do not --9 LORD HUTTON: Perhaps I should say, Mr Gompertz, that we are10 approaching 1 o'clock and I am very much in counsel's11 hands. It may be that if we sit on a little beyond12 1 o'clock we will be able to conclude. I think if

13 counsel are agreeable I would be minded to sit on if14 that is agreeable to everyone.


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15 Yes.16 Submissions in reply by MR GOMPERTZ17 MR GOMPERTZ: I shall be very brief.18 I do not attempt to answer Mr Robertson's19 submissions, but I do have specific instructions from

20 the Kelly family as to their perception of the21 television of the proceedings.22 LORD HUTTON: Yes.23 MR GOMPERTZ: The family feels that the presence of24 television cameras at the Inquiry would only serve to25 intensify the ordeal which the family faces and the

651 pressure upon them. The death of Dr Kelly has caused2 them distress enough.3 The surrounding issues, with implications of4 national proportions and the intense media interest,5 have turned a private tragedy into what the family feels6 is a public maelstrom to which the family is wholly7 unaccustomed.8 Having witnessed the added strain suffered by9 Dr Kelly by reason of the television of his evidence to10 the Foreign Affairs Select Committee of the House of11 Commons the family would not wish that any witness at12 this Inquiry should be subjected to a comparable13 experience. The family wish to see everyone involved in14 the Inquiry treated in a dignified manner. The family15 members are concerned that televising the proceedings16 will turn their private loss into the nation's17 entertainment. They are also concerned that if the18 proceedings are televised many commentators and viewers19 will regard presentation as more important than20 substance and that witnesses will be judged by the21 public by their performance as witnesses rather than by22 the content of what they have to say.23 The family acknowledges that the Inquiry is to be24 a Public Inquiry and that the public has a legitimate25 interest in the process of the Inquiry as well as in its

661 outcome, but suggests that televising the Inquiry will2 not assist the Inquiry in its search for the truth nor3 in its evaluation of the evidence and assessment of the4 events which have occurred.5 My Lord, for those reasons, the family invites you6 not to allow television of the proceedings.7 LORD HUTTON: Thank you very much, Mr Gompertz.8 Mr Sales, do you have any submissions on behalf of9 the Government?10 MR SALES: Sir, no submissions. The Government is entirely

11 neutral on this matter and the difference between12 Mr Gompertz and Mr Robertson.


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13 LORD HUTTON: Yes. Very well. Thank you very much indeed.14 Mr Caldecott?15 MR CALDECOTT: Sir, the BBC has sympathy with the views of16 Dr Kelly's family as expressed by Mr Gompertz. As17 a broadcaster, they do not oppose Mr Robertson's

18 application but they are content to leave the decision19 to your Lordship to make.20 LORD HUTTON: Yes. Thank you very much indeed.21 Ms Campbell?22 MS CAMPBELL: Ms Watts similarly takes a neutral stance in23 this matter, sir, and supports the BBC's contentions24 that it is a matter for the Inquiry.25 LORD HUTTON: Yes. Thank you very much.

671 Mr Pleming, do you have any observation that you2 wish to make?3 MR PLEMING: Sir, I take the same position as Mr Sales.4 I have nothing else to add.5 LORD HUTTON: Yes. Thank you very much indeed.6 Mr Robertson, is there anything you would wish to7 say in reply?8 Submissions in reply by MR ROBERTSON9 MR ROBERTSON: Only that one fully understands the family's10 position which obviously was articulated before they11 heard the application. It may not, of course, be quite12 as pronounced having heard it; the same view may not be13 taken. Obviously it was precisely to avoid the concern14 that we do not seek to have the coronial aspects of15 the Inquiry.16 LORD HUTTON: Yes.17 MR ROBERTSON: It was to establish that media circuses in18 this country are not created by the broadcast media, but19 I showed your Lordship the restraints that applied to20 that media and do not to the press.21 Of course, one has frequently the case that of22 course very disturbing matters to individuals give rise23 to issues of great public importance and that freedom of24 expression and the right to communicate information is

25 a matter that must be greater than the concern of

681 individuals; and that is the basis upon which we put our2 submission.3 LORD HUTTON: Yes. Thank you very much.4 (1.00 pm)5 (Hearing adjourned until 10.30 am on Monday6 11th August 2003)78

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hearing transcript - 1 august 2003 morning

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