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Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, September 24, 2003
 

Cross-examination of head spook largely a bust


As I've mentioned before, Hutton is investigating two main areas: the treatment by HMG of Dr Kelly and whether HMG sexed up the September 24 2002 dossier.

On the latter point, the evidence of John Scarlett, Chairman of the Joint Intelligence Committee, who - HMG's case supposes - had entire command of the content of the dossier at all times is bound to be vital. Others - like Alastair Campbell - were (on HMG's case) peripheral to the construction of the dossier; or - like Brian Jones from the Defence Intelligence Assessment Staff (DIAS) - subordinate. If any progress was to be made on the sexing-up allegation, it would have to be with Scarlett.

The transcript [1] of his second appearance [2] makes for a pretty depressing skim-through:a fine tooth-comb may uncover gold, but I doubt it!. The BBC's lawyer - whose client had most to gain from discrediting the intelligence content of the dossier in general, and the infamous 45 minute claim in particular, made what looks like a comprehensive Horlicks of the whole thing.

Even on the evidence given to the Inquiry (which, even allowing for considerations of security, seems to have been on the scant side), the 45 minute claim was assailable on numerous points (some of which I attempted to pin down in my September 2 piece).

All cross-examining counsel were time-limited, so might be expected to hit their best points hard and fast. The BBC's man wasted ages with a line of questioning (from around 113:24) that never achieved take-off speed on the difference between various formulations of the 45 minute claim in the dossier, and in the JIC assessments [3] on which the dossier was supposedly based: the difference between
intelligence shows that...
and
intelligence indicates that...

There is - one gathers - a genuine difference between the two formulations: both are terms of art as that expression would be understood by lawyers. But Caldecott could make nothing of it.

(Even Lord Hutton seemed confused (123:13). And, perhaps, not a little bored, too. [4])

Where he does take on the detail of the intelligence, it goes nowhere; as at 128:16, when he puts to Scarlett
some possible
17 elements of uncertainty
in the 45 minute intel; starting with:
Firstly,
19 you did not know what munitions the Iraqi officer was
20 specifically referring to, did you?
and moving on to
You did not know from where or to where the munitions
23 might be moved within 45 minutes?

To both of these propositions, Scarlett assented.

Now, those - utterly basic - details would be important in two ways:
  • as intelligence in themselves; and

  • as corroboration for the rest of the intelligence.

Their absence surely cripples the Iraqi officer's story?

But Caldecott insists on wrapping up these admissions of Scarlett's into his futile quest for a result in his indicates v shows line of (I laughingly call) argument. It sinks slowly into the sand, before vanishing without trace.

There is further stuff on Campbell's role - which has zero shock-horror value, given what we already know.

He returns to the battlefield munitions point [2], and asks (138:3) whether the distinction had been made clear to Blair. Whereupon Scarlett evidently remembers a point from his practice sessions, and launches into a whole barrage of technical detail on battlefield CBW (chemical and biological weapons) evidently designed to point up Caldecott's ignorance of the subject-matter. (Though Scarlett is, of course, vastly less of an expert on the subject than - oh, the late DK, say...) As fine a deployment of chaff (in the Andrew MacKinlay sense) as one might wish to see!

[Another area ripe for investigation is the apparently highly selective recording of meetings and other communications at Number 10. But Caldecott chooses to raise that question with Scarlett, who had the easy out that it wasn't his business (147:17). Leaving Caldecott - yet again - one down (in the Stephen Potter sense) - and (by necessary implication) Scarlett, one up.)

He makes something of a September 19 email from Blair's Chief of Staff Jonathan Powell [5] asking for a redraft of a passage in the dossier that suggested that a threatened invasion would be the one thing to make Saddam use his WMD (which was, rather, one of the points opponents of the War Party were making at the time!). He presses the argument (158:17) that [6] on can have sexing up by omission

But then plunges back into the detail of discussions on the drafting of the dossier - points which simply have no traction.

Then he moves onto questions of the evidence about the drafting of the dossier provided by HMG to the Commons Foreign Affairs Committee. (Thereby already moving one level away from the matter in hand.) The whole thing gets terminally mired in inconsequential tedium over a confusion over the identification of a particular document on the screen (from around 177:13). By 181:17, the hapless Caldecott decides not to ask any questions about the document after all - and this time resorts to football for his analogy:
One nil to you, Mr Scarlett, I think on that
3 document.

Fortunately, he grinds to a complete halt shortly afterwards - to find Inquiry counsel James Dingemans (fuming, evidently, about having his time cut short) returning to the offending document, and uttering the immortal words:
What I think you were
22 going to be asked by Mr Caldecott...

The fact is that, of the QCs involved in the cross-examinations, only Dingemans has anything like a satisfactory mastery of his brief. (And no wonder, given the volume of evidence produced!)

If effectiveness had been the aim, it would have been far better for Dingemans to have assumed in turn the role of counsel for the various interested parties, and cross-examined accordingly. (That, however, would certainly not have been cricket!)

In short, the cross-examination sessions, long trailed in the media as the time when the gloves would come off has been a damp squib. The patient examination-in-chief of Dingemans - interspersed with courteous interventions of
his Lordship whose vitriol was given away in a final
Yes...-
was, ironically, much more effective and less tedious than the efforts of the latter-day Marshall Halls and FE Smiths [7].

  1. At the end of the morning session of September 23, he was questioned (friendlily) by HMG's own lawyer Jonathan Sumption QC; in the afternoon by BBC counsel Andrew Caldecott QC and Inquiry counsel James Dingemans QC.

  2. My August 27 piece on his first appearance majors on the obfuscation of the fact that the 45 minute claim applied to battlefield weapons, and not ballistic missiles - the leaping of the press to the opposite conclusion in its coverage of the dossier does not - according to his evidence under cross-examination - to have worried him much (139:9)!

  3. Something (I surmise) equivalent to the CIA's National Intelligence Estimate (NIE) - the regular mechanism whereby intelligence information is supplied to the upper echelons of HMG, both officials and politicians.

  4. Caldecott did not endear himself by what he seemed to think were endearing cricketing references; as (125:20)
    I hope not my Lord. I do not know whether it
    21 was a swinging ball or not.
    At least, I suppose it was cricketing (I'm no buff, but I don't recognise the sense in context). Hutton (from Ulster, where they don't play much cricket) gave nothing away by replying
    No, not at all.

    He also misquotes Campbell's famous line (145:19):
    Mr Pruce, who Mr Campbell said
    19 was "punching above his pay grade" was his expression,..
    Whereas the phrase (36:6) actually is
    making contributions
    7 effectively above his pay grade.

    These guys are paid truckloads of cash to get these things right, surely?

  5. Which has actually been on the Hutton site for some time - though hacks seemed to be under the impression it was a revelation of this week.

  6. Pace Michael Mates - my piece on September 17.

  7. Terence Rattigan's The Winslow Boy naturally springs to mind (the QC in that case was, I think, modelled on Smith). Comparisons would, naturally, be odious, but...


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