20 February 2008 - Morning session
1 Wednesday, 20th February 2008
2 (10.00 am)
3 (Jury present)
4 LORD JUSTICE SCOTT BAKER: Mr Burnett, next week on Tuesday,
5 Thursday and Friday, Secret Intelligence Service staff
6 will be giving evidence. These witnesses will be giving
7 evidence live in this court. In order to protect the
8 identities of those giving evidence, they will be
9 identified by letters or numbers, rather than their
10 names, and their physical appearance will be concealed.
11 In most courts this second aspect would be achieved
12 by erecting a screen. However, because of the
13 availability of the annex, the public and media will be
14 located there, with the benefit of an audio link.
15 A full transcript will be provided. No videolinks will
16 be available.
17 The only people permitted in this room will be
18 the jury, court officials, the interested persons and
19 their respective solicitors and counsel. They will thus
20 be the only people having the benefit of seeing
21 the witnesses. The time and date at which each witness
22 will give evidence and the transcripts of the court
23 proceedings will be published as usual on the website.
24 The procedure being adopted to protect
25 the identities of current and former members of
1 the intelligence agencies mirrors that common in all
2 forms of legal proceedings. This is not a hearing in
3 camera because all the evidence will be heard by
4 the public and the media and will be available in
5 transcript form.
6 The arrangements do not apply to Sir Richard
7 Dearlove, who will be giving evidence today, whose
8 identity as a former head of MI6 is public knowledge.
9 MR BURNETT: Yes, sir.
10 LORD JUSTICE SCOTT BAKER: So I call next Sir Richard
12 SIR RICHARD DEARLOVE (sworn)
13 LORD JUSTICE SCOTT BAKER: Please sit down to give your
14 evidence if you prefer to be seated. You may be there
15 for some time.
16 A. Thank you very much.
17 Questions from MR BURNETT
18 MR BURNETT: Sir Richard, as you know my name is Ian Burnett
19 and I shall be asking you questions first on behalf of
20 the Coroner. When I have completed my questioning, you
21 are likely to be asked questions by others representing
22 interested persons and perhaps even by your own counsel.
23 Can I start with the formalities? Is your full name
24 Richard Billing Dearlove?
25 A. Correct.
1 Q. Are you now Master of Pembroke College, Cambridge?
2 A. I am.
3 Q. But before that, were you chief of the Secret
4 Intelligence Service?
5 A. Yes I was.
6 Q. It is right, isn't it, that the Secret Intelligence
7 Service is more commonly known as "MI6"?
8 A. It is. It is also known as MI6.
9 Q. That much is now recognised on its own website.
10 A. Yes.
11 Q. Now, before I take you to any detail, Sir Richard, can
12 I simply locate with you some documents that I shall be
13 referring to?
14 It is right, isn't it, that you made a statement for
15 the purposes of these inquests which you signed on
16 4th January 2008?
17 A. Yes, that is correct.
18 Q. And you have a copy of that statement with you, I hope.
19 A. I do indeed.
20 Q. Attached to that statement was a substantial exhibit --
21 A. Yes.
22 Q. -- containing documents to which you referred in
23 the course of your statement.
24 A. (Witness nods)
25 Q. I shall take you to some of those documents.
1 What I have asked should happen is that the first
2 105 pages of the exhibit have been copied and we will
3 hand them out to the jury when we come to the first
4 reference within your exhibit. Can I ask you about your
5 service with MI6? Is it right that you joined MI6 in
7 A. Correct. I did.
8 Q. And that between 1966 and 1993, you served in a variety
9 of posts, both in the United Kingdom and also abroad?
10 A. Yes, that is correct.
11 Q. From 1984 until 1987, were you deputy head of the
12 personnel department at MI6?
13 A. Yes, I was.
14 Q. And the posts that you held thereafter were senior
15 posts, is that right?
16 A. Correct, all of them were senior posts.
17 Q. The first was in Geneva between 1987 until 1991?
18 A. Yes.
19 Q. And thereafter were you posted to Washington, from 1991
20 to 1993?
21 A. Yes.
22 Q. Then were you director of personnel and administration
23 from 1993 until 1994?
24 A. I was.
25 Q. What post did you take up in 1994, having completed your
1 job as director of personnel and administration?
2 A. In 1994 I became the director in charge of operational
3 work in SIS.
4 Q. Having completed that in 1999, were you assistant
5 chief --
6 A. Well, I was assistant chief for my final year as
7 director of operations, so I was assistant chief as
8 well, and then in 1999 I became chief of the service.
9 Q. And you remained chief of the service until 2004?
10 A. Correct, until the summer of 2004.
11 Q. All told, for how long did you sit on the board of SIS
12 or MI6?
13 A. From the time that I came back from Washington in 1993
14 until my retirement in 2004, I was a member of the
16 Q. Now, as director in charge of all operational work
17 between 1994 and 1999, it follows that you were in that
18 position at the time of the deaths of the
19 Princess of Wales and Dodi Al Fayed?
20 A. Correct.
21 Q. You are aware, are you not, Sir Richard, of the nature
22 of the allegations that have been made about SIS in
23 connection with the deaths?
24 A. I certainly am.
25 Q. Thus, given the position you occupied between 1994 and
1 1999, it is right, isn't it, that this is, from your
2 point of view, a rather personal allegation?
3 A. It is a personal allegation, yes.
4 Q. Can I deal with some general matters of explanation as
5 to how the service generally deals with allegations
6 made, comments made, questions asked?
7 It is fairly common, isn't it, Sir Richard, for
8 there to appear in the media suggestions that MI6 has
9 done this or that and it is fairly common for MI6 to be
10 asked by people whether they have done this or that.
11 What is the general policy response to questions of that
13 A. The service's policy is to neither confirm nor deny. So
14 generally it does not reply to allegations made in
15 the public domain about its activities.
16 Q. Now, it may well be obvious to everybody why that policy
17 is applied -- I will ask you to explain it in a few
18 sentences -- but is it right that the same policy is
19 applied by your sister agencies, that is to say
20 the security service, that is MI5, and GCHQ?
21 A. Generally speaking, yes.
22 Q. And it is a policy applied by many intelligence agencies
23 around the world?
24 A. Yes, but to a specific degree in the UK.
25 Q. What, in just a few words or sentences, is the reason
1 why that policy is regarded as important?
2 A. Well, if you respond to an allegation, you create an
3 expectation that you will always comment or question or
4 answer a question when one is posed about the activities
5 of the service. Therefore, in the interests of national
6 security, the better choice is to say nothing, and that
7 includes denying allegations, even though the
8 allegations may be untrue. So it is a sensible policy
9 which has been followed for a long time and has been
10 endorsed by successive governments.
11 Q. Now you are here in part to deny the allegations, which
12 would appear to be a departure from the usual policy.
13 A. I am on this occasion. When matters of let's say grave
14 concern arise, rare exceptions of policy are made, and
15 obviously, in this particular instance in this court,
16 I think one can understand why an exception is being
18 Q. Now, Sir Richard, I have been asked to invite you to
19 speak up a little. Somebody is having difficulty in
21 So, exceptionally, SIS is engaging in denying
22 allegations, and the jury have heard one other example
23 of that in the course of the weeks that they have heard
24 evidence, and that was a denial by various ministers in
25 1993 that the Royal Family had been the subject of
1 surveillance. So is that another example of
2 the overriding interest pushing the neither deny nor
3 confirm way?
4 A. Yes. There are various occasions when there is a strong
5 demand for a public statement, and in the particular
6 context, whether it might be a Parliamentary inquiry or
7 let's say a court of law, an exception is made, but
8 making an exception does not indicate an abandonment of
9 the principle, which I think has been very valuable in,
10 as it were, defending the integrity and the interests of
11 the intelligence and security community.
12 Q. So no one should take your presence here, nor indeed
13 the presence of witnesses we are going to hear next
14 week, as a signal of a general departure from
15 the neither confirm nor deny principle?
16 A. Not at all.
17 Q. Now, Sir Richard, I am going to ask you questions about
18 matters which are within your own knowledge and matters
19 concerning the role of MI6 and its regulation and so on.
20 I think you are aware, are you not, that we are
21 expecting to hear from a witness next week who will deal
22 with a lot of detail consequent upon searching SIS
23 records and who will be in a position to deal with
24 detailed questions concerning individuals in particular
25 of which you have no direct knowledge?
1 A. That is true.
2 Q. Does MI6 operate on a statutory basis; in other words,
3 is it governed by Acts of Parliament?
4 A. Since the passing of the Intelligence Services Act, yes,
5 it has operated on a statutory basis.
6 Q. And the Intelligence Services Act was enacted in 1994.
7 That is right, isn't it?
8 A. Yes, it was.
9 Q. Now before 1994, is it right that neither SIS nor GCHQ
10 were recognised as existing in statute?
11 A. That is correct. Strange though it may seem, but that
12 is correct.
13 Q. However, the Security Service had been put on
14 a statutory footing a few years earlier in 1989.
15 A. It had, yes.
16 Q. Now, does the Intelligence Services Act set out the
17 basic roles and functions of MI6?
18 A. Yes, in a very simple and straightforward way it tries
19 to set out a framework within which the -- a legal
20 framework within which the service exists and what its
21 relevant functions are.
22 Q. Now, we will be touching on a number of the provisions
23 and, Sir Richard, you can be sure that I am not seeking
24 from you any legal analysis, but it may be helpful if
25 we have firmly in mind the statutory functions.
1 Those are found in section 1 of the Act. That is
2 right, isn't it?
3 A. They are indeed, yes.
4 Q. I wonder if section 1 of the Intelligence Services Act
5 could be put on the screen so that the jury and everyone
6 else can look at it. We see that the Act begins with:
7 "There shall continue to be a Secret Intelligence
8 Service ... under the authority of the Secretary of
9 State ..."
10 Now, pausing there immediately, which Secretary of
11 State has authority over and responsibility for MI6?
12 A. The Foreign Secretary.
13 Q. Has that always been the case?
14 A. Yes, it has, yes.
15 Q. And its functions are:
16 "(a) to obtain and provide information relating to
17 the actions or intentions of persons outside the British
18 islands; and
19 "(b) to perform other tasks relating to the actions
20 or intentions of such persons."
21 A. Right.
22 Q. So, pausing there, in general terms MI6 focuses on
23 activities abroad rather than activities in the United
25 A. Yes, that would be true as a generalisation.
1 Q. Now, we then see that the statute sets out for what
2 purposes you in SIS could function:
3 "(a) in the interests of national security, with
4 particular reference to the defence and foreign policies
5 of Her Majesty's Government in the United Kingdom; or
6 "(b) in the interests of the economic well-being of
7 the United Kingdom; or
8 "(c) in support of the prevention or detection of
9 serious crime."
10 So do we see there the strict parameters within
11 which MI6 can lawfully operate?
12 A. Yes. It spells out very clearly the three categories,
13 as it were, of SIS activity.
14 Q. Now, when this Act of Parliament was going through its
15 Parliamentary process as a Bill, was there some debate
16 about the sort of activities that SIS might engage in in
17 pursuance of its statutory role?
18 A. Yes, there was. There were references in the
19 Parliamentary debate by the minister who presented the
20 Bill in Parliament to try to explain the sort of
21 activities the service might carry out and might fit
22 into these three categories.
23 Q. Was the minister who dealt with the Bill, when it was in
24 committee in the House of Commons, Mr Hogg, as he then
1 A. I believe it was, yes; the young Mr Hogg.
2 Q. Yes. Maybe not so young Mr Hogg now. But in any event,
3 he was the minister responsible at the committee stage?
4 A. He was, yes.
5 Q. What I would ask is that the jury be given the bundle,
6 and for my learned friends, it is the -- the pagination
7 I shall refer to is the same as that in the exhibit. If
8 anyone does not have their exhibit with them, there are
9 spares here, but I would imagine all my learned friends
10 have them.
11 Now, if we could start with page 1 just to locate
12 what we are dealing with, Sir Richard. This is an
13 extract from Hansard, is it not, from 3rd March 1994?
14 A. Yes, it is.
15 Q. If we look at the bottom of the first column, we will
16 see a reference to "Clause I" and "The Secret
17 Intelligence Service".
18 A. Yes.
19 Q. Now just so that those who may not be familiar with
20 Parliamentary procedure are assisted in what we are
21 looking at, when a Bill is before Parliament, that is to
22 say before it has been enacted, its provisions are
23 referred to as "clause 1, 2, 3, 4, 5", rather than
24 "section 1, 2, 3, 4, 5"; that is right, is it?
25 A. It is.
1 Q. So the clauses that are referred to in due course became
2 the sections in the Act and we have just looked at
3 section 1.
4 Now, if one looks at the top of the page, there is
5 a reference to "Standing committee E". Is all that
6 means is this is the part of the Parliamentary process
7 when the Bill was in committee in the House of Commons?
8 A. It is the Parliamentary committee which, as it were,
9 discussed the content of the Bill.
10 Q. Then if one looks at the right-hand side at the top, one
11 sees "Intelligence Services Bills (Lords)"; the
12 reference to the Lords there simply means it was first
13 introduced to the House of Lords rather than the House
14 of Commons.
15 A. Correct.
16 Q. So there is no mystery in that.
17 Now a number of the functions or activities that
18 might be necessary for SIS to carry out were discussed
19 a little later in the report. Was the context a general
20 debate about how SIS should be regulated when doing
21 things which would be illegal if done in the United
22 Kingdom without a statutory authority?
23 A. That is correct. The idea was to, as it were, render
24 legal the activities of the Intelligence Service,
25 whether they were conducted in the UK or overseas.
1 Q. Well now, could we turn to page 7, please, of
2 the bundle? Can I invite your attention, to begin with,
3 to the very bottom of the second column on that page
4 which -- members of the jury will see that at the top of
5 each column there is a number, and in Parliamentary
6 debates column numbers are referred to by that number.
7 So although it is the second column on that page, it is
8 in fact column 30 of the report.
9 Right at the bottom of the page, perhaps I can just
10 read an extract from something that Mr Hogg,
11 the minister, said:
12 "Take, for example, receiving documents from some
13 foreign source. They may very well be stolen documents,
14 and I suspect committee members would like agents abroad
15 to be able to receive them. Take, for example, entering
16 property with a view to obtaining information or
17 implanting some form of listening device. I suspect
18 that committee members would approve of that in guarded
19 circumstances. I will come back to that in a moment.
20 Or take the most obvious example, from which I do not
21 think anyone would dissent -- entering property with
22 a view to disabling a weapon or an explosive device so
23 that a terrorist cannot effectively use that weapon
24 against our citizens somewhere."
25 So those were some general examples of the sorts of
1 activities that MI6 might need to undertake which, on
2 the face of it, would be unlawful if conducted in the
3 United Kingdom.
4 A. Correct.
5 Q. Even though conducted abroad, it is right, isn't it,
6 that that would nonetheless be unlawful?
7 A. Well, under the Criminal Justice Act, if I remember my
8 facts correctly from my time as chief, in I think 1947
9 or 1948, criminal -- there is a section which refers to
10 Crown servants.
11 Q. We will come to that in a moment.
12 Can we look at another example which you give? That
13 comes in the report of the Intelligence and Security
14 Committee for 2005 and 2006. We will find the beginning
15 of that report on page 13 of the bundle.
16 Now, the Intelligence and Security Committee is
17 a committee which comprises senior parliamentarians;
18 that is right?
19 A. Correct, yes.
20 Q. It is charged with an oversight function of the
21 intelligence agencies including SIS?
22 A. It is, yes.
23 Q. We will see a little bit more about that in due course
24 but, the example I think you draw attention to of
25 another activity of SIS is found in paragraph 46 of that
1 report, at page 32 of our bundle.
2 A. Yes. That is correct.
3 Q. Now, paragraph 46 is talking in general terms about
4 resources and funding, but if I could pick it up perhaps
5 four lines down:
6 "The additional funding for SIS allocated ... will
7 be spent on enhancing front-line counter-terrorism
8 operations overseas and developing the capacity of
9 liaison services in ... priority countries."
10 Now, the reference to "front-line counter-terrorism
11 operations" is a reference to one of the key activities
12 of SIS, is it not?
13 A. It is, indeed, yes.
14 Q. "... developing the capacity of liaison services", what
15 are "liaison services", Sir Richard?
16 A. That refers to the intelligence and security services of
17 other nations with whom the UK might be working on, in
18 this instance, counter-terrorism, and it refers to
19 improving their capability to deal with terrorist
20 problems. So the sort of generic term for that sort of
21 partner is a "liaison service".
22 Q. So those are the intelligence services of other
24 A. Intelligence and security services of other countries,
1 Q. So that gives, from publicly available documents, some
2 idea of --
3 A. Yes, it is intended to try to give a picture, a scope of
4 the sort of activities that might be encompassed in this
6 Q. Now, in addition to the particular activities that
7 we looked at in Mr Hogg's speech just a moment ago, as
8 I think you foreshadowed, there was a considerable focus
9 on the question of whether activities conducted by SIS
10 abroad would, but for some sort of approval, under
11 a statute, be unlawful.
12 A. Correct.
13 Q. Now perhaps we can just have a look at that.
14 Members of the jury, if you turn back to page 7 of
15 this bundle, again, if we look at the right-hand column
16 where we were before, but further up at the beginning of
17 Mr Hogg's intervention at this point, if we just pick it
18 up in the second paragraph of Mr Hogg's speech, third
20 "We start from an important understanding. All
21 intelligence services and all law enforcement as
22 agencies -- the police and the Customs, for example --
23 are subject to the ordinary constraints of law unless in
24 some respects the law is disapplied as regards them or,
25 alternatively, they are given additional powers by
2 "Certainly laws have an extra-territorial effect..."
3 All that means is they apply outside the United
5 A. Yes, that is correct.
6 Q. "For example, murder by British subjects is unlawful
7 wherever it is committed, and -- I say this in no
8 flippant mode but simply to demonstrate the width of the
9 proposition -- so is bigamy. But there is another law
10 on which honourable members ... have not focused and
11 that is the law contained in section 31 of the Criminal
12 Justice Act 1948."
13 So that is the provision that you adverted to
14 a minute or two ago.
15 A. It is, yes.
16 Q. It says:
17 "Any British subject employed under His Majesty's
18 Government in the United Kingdom in the service of
19 the Crown who commits in a foreign country, when acting
20 or purporting to act in the course of his employment,
21 any offence which, if committed in England, would be
22 punishable on indictment, shall be guilty of an office
23 of the same nature and subject to the same punishment,
24 as if the offence had been committed in England."
25 The minister went on:
1 "So we start off with not just the narrow
2 extra-territorial offences to which I have made
3 reference ... but also the general application of the
4 law of England and Wales to Crown servants acting abroad
5 in the course of their employment."
6 That is an important proposition to understand.
7 So that was the starting point for consideration
8 under the Intelligence Services Bill?
9 A. Yes, it was.
10 Q. The consequence was that a mechanism needed to be
11 included within the Bill which would authorise SIS to
12 undertake things abroad which, without authority, would
13 be a crime even here?
14 A. That is correct.
15 Q. We see in the next paragraph a reference by Mr Hogg to
16 lethal force and, as he says in the third line there, he
17 will discuss that in a moment, and so shall we,
18 Sir Richard.
19 Can we have a look at section 7 of the ISA,
20 Intelligence Services Act?
21 I do not think we need this on the screen at the
22 moment. You deal with this, just so that you know where
23 I am, in the statement that you have provided at
24 paragraph 5. What it amounts to is this, isn't it, that
25 the Secretary of State -- that is to say the Foreign
1 Secretary -- can personally grant an authorisation so
2 that acts which might otherwise be unlawful can be
3 rendered lawful?
4 A. That is precisely the case, yes.
5 Q. So it is something that can only be done by the
6 Secretary of State; in other words, it cannot be done by
7 officials in his department or yours?
8 A. Authorisations under section 7 are done by the Secretary
9 of State in certain instances. If he is not present,
10 another minister.
11 Q. But it has to be a minister?
12 A. Yes.
13 Q. In that context, we have seen Mr Hogg's reference to
14 receiving stolen documents, breaking into premises and
15 things of that sort. But as the reference to which
16 I drew attention a moment ago shows, there was some
17 focus in the course of the debate on the use of lethal
18 force. That is right, isn't it?
19 A. Yes, there was.
20 Q. Now, did the minister deal with that in the course of
21 his speech on this part of the Bill?
22 A. Yes, there is a reference. I think it is pages 9 and 10
23 of the attachments.
24 Q. Well, perhaps we can pick it up at page 9. Again, I am
25 in the right-hand column. What I would like to do is
1 pick it up at the large paragraph about halfway down,
2 beginning, "If I may, I shall move to lethal force ..."
3 Do you have that?
4 A. Yes, I do.
5 Q. Then the minister went on:
6 "The honourable member for Walsall [that is a
7 reference, I think to Mr Mullen, a Member of Parliament
8 on the committee] made an important point that, if we
9 were in a state of war, legal force per se should not
10 always be prohibited. That is a fair concession.
11 I think that he would be equally fair in acknowledging
12 that there are circumstances that fall short of a state
13 of war where the lives of British troops or, for
14 example, citizens generally could be at serious risk.
15 Without wishing to go into too much detail, I can
16 conceive that of the Falkland Islands, the Gulf or
17 Bosnia, in none of those cases was there a formal
18 declaration of war. I do not think the Falkland Islands
19 attracted a formal declaration of war and I know
20 the Gulf did not. However, in all those circumstances,
21 there was a clear threat to the lives of British
22 soldiers. There is no difference in principle between
23 the Second World War and the other two conflicts, the
24 Falklands and the Gulf, when British soldiers' lives
25 were at risk. So there clearly are circumstances within
1 the conditions contemplated by the honourable gentleman
2 when lethal force would be justified."
3 So just pausing there for a moment, are we to
4 understand then that the position of the Government was
5 that it would not exclude the use of lethal force from
6 the provisions of section 7?
7 A. That is implied by the statement of the minister, yes.
8 Q. Well, then can I read on:
9 "It is inconceivable that, in ordinary
10 circumstances, my right honourable friend the Secretary
11 of State or any of his successors -- or for that matter,
12 predecessors -- would authorise the use of lethal force.
13 No force likely to cause injury, far less lethal force,
14 could be used and be lawful unless it was authorised,
15 because of the impact of the 1948 Act. Therefore
16 the only lawful force that could be used abroad is that
17 authorised through an authorisation issued by the
18 Secretary of State."
19 I then jump over an intervention from Mr Hutton and
20 the beginning of the answer from Mr Hogg and pick it up
21 again in the middle of the next column on page 10:
22 "The main point made by the honourable member for
23 Sunderland South was about acts of force abroad. That
24 is unlawful unless it is covered by a clause 7
25 authorisation. The Secretary of State would not, in
1 ordinary circumstances, issue a clause 7
2 authorisation in respect of the use of force. I say
3 'ordinary circumstances' because I can conceive of
4 circumstances ... when it would be right to do so.
5 Examples would be serious emergencies or crises causing
6 great damage to Great Britain or her citizens. I do not
7 want to exclude the ability to do so in those
8 circumstances, but I can say that assassination is no
9 part of the policy of Her Majesty's Government."
10 So that is the position that was publicly
11 articulated by the Government as the Intelligence
12 Services Bill was going through Parliament.
13 A. Yes, I think it is a very clear statement of the
14 Government's attitude.
15 Q. Did the minister in passages in the same part of the
16 extract, which I do not think I will need to take
17 everyone to, indicate that there could be confidence in
18 the relationship between the Secretary of State and
19 the chief; that is to say the chief of SIS?
20 A. Yes, he certainly did.
21 Q. He also referred to the various oversight mechanisms
22 that were being introduced by the Bill that became the
23 Act. We have looked at the Intelligence and Security
24 Committee -- we may need to look at it in more detail --
25 but that is Parliamentary oversight, and he also
1 referred to the Intelligence Services Commissioner; that
2 is judicial oversight.
3 A. Judicial compliance, really.
4 Q. And the tribunal, the Intelligence Services Tribunal,
5 which is more judicial oversight and providing
6 a mechanism for complaints.
7 A. It is a mechanism for the public to complain, yes.
8 Q. Now, just in short order, quite apart from those
9 specific oversight mechanisms which govern SIS, was, at
10 that time, SIS also subject to the Interception of
11 Communications Commissioner?
12 A. Yes, it was.
13 Q. That is another judicial oversight, I think, is it not?
14 A. It is indeed.
15 Q. The Interception Commissioner was appointed pursuant to
16 the Interception of Communications Act 1985, which
17 regulated the circumstances in which phone taps, for
18 example, could be obtained and used.
19 A. Yes.
20 Q. That has been superseded by new legislation in 2000,
21 which I need not trouble you about. But the 1985 Act
22 was in place for the period --
23 A. The IOCA Act was in place at the time, yes.
24 Q. Could we look at page 9 and column 33? In the middle of
25 the page, did Mr Hogg deal with the question of private
1 action, as it were, on the part of members of SIS;
2 a private agenda?
3 A. Yes, he did.
4 Q. Did he say that a private agenda, either by an
5 individual officer or the head of the agency, that would
6 not be disclosed was not sustainable and would be
8 A. Yes, he did.
9 Q. Now we can see and you have explained that this Act of
10 Parliament in 1994 put SIS on to a statutory footing.
11 The approach that one sees in the legislation, namely
12 seeking ministerial authority before doing anything that
13 would be unlawful if done in this country, even though
14 done abroad, was that new in 1994?
15 A. The specific part of the Bill which refers to
16 authorisation was new. So the class 7 authorisation was
17 new. But before the Bill was introduced, there was also
18 a very rigorous process of clearance for all significant
19 operational activity. But I think it is best to
20 describe that as political clearance pre the Act or pre
21 the statute.
22 Q. What do you mean by "political clearance" in that
24 A. That you have the approval of the Government,
25 ie the signature of a minister, to carry out a specific
1 activity. So all significant activity had to have
2 the signature of a minister on a clearance proposal.
3 Q. So even before 1994?
4 A. Even before the Act. So the activity of the service was
5 in fact strictly regulated, but not through a judicial
7 Q. Now the minister had stated that assassination was no
8 part of the policy of Her Majesty's Government.
9 What I would like to explore with you is, from your
10 personal experience between 1966, I think you told us,
11 and when you retired in 2004, whether assassination was
12 part of the policy of MI6. To assist you, Sir Richard,
13 I am looking at paragraph 8 of your statement.
14 Now, I would like to understand, with your help, how
15 much knowledge of what goes on within SIS/MI6 people
16 would have at different stages of their career.
17 Obviously, as chief, one assumes you know anything of
18 significance that is going on.
19 A. Yes.
20 Q. But presumably the lower down the hierarchy, the more
21 narrow your focus; would that be right?
22 A. In essence, yes.
23 Q. Is there a general approach to knowledge within
24 the service that people only know what they need to
1 A. Well, the principle of "need to know" is applied
2 throughout the organisation. Therefore your knowledge
3 is compartmentalised in terms of the activity for which
4 you are responsible, but of course the further up
5 the service you go, the more you need to know what
6 everyone else is doing.
7 Q. Yes. Again it may be very obvious why the "need to
8 know" principle applies, even though you are dealing
9 with people in the service who are trustworthy, but why
10 is it that somebody is not given information that they
11 don't need to know?
12 A. Because of the sensitivity of the information which is
13 being dealt with. It is good security practice to
14 restrict knowledge on that basis.
15 Q. It avoids accidental problems, quite apart from
16 deliberate problems?
17 A. It contributes to the efficient and secure functioning
18 of the whole organisation and, therefore, people who
19 don't need access to certain secrets just don't have it.
20 Q. During the whole of your time, Sir Richard, with SIS,
21 1966 through to 2004, were you ever aware of the service
22 assassinating anyone?
23 A. No, I was not.
24 Q. Now, whilst you were on the nursery slopes, as it were,
25 of the organisation, your knowledge would have been
1 restricted to the areas in which you were working?
2 A. Yes. Generally speaking, the areas where I had personal
4 Q. But at what stage in your ascent up the hierarchy did
5 you get to a stage where you would have known had any
6 such activity been going on?
7 A. I think I can say that with confidence, when I became
8 a member of the board of SIS. So from the time when
9 I was deputy head of personnel, I had very extensive
10 knowledge of the service.
11 Q. During that time, the title or the description of your
12 job may not convey exactly what it involved, as
13 directors of personnel in other organisations are
14 usually involved with the nuts and bolts of salaries
15 and --
16 A. I think that I prefer not to go into detail, but if you
17 have responsibility, which I had, for the management and
18 planning of all the fast-stream career staff in the
19 service, then I obviously had an extensive knowledge of
20 them and in many instances what they were doing.
21 Q. As you told the jury when we started, you were director
22 in charge of operational work from 1994 until 1999.
23 During that period, were you aware of and involved in
24 decision-making concerning all significant operational
1 A. Yes, I was.
2 Q. Again, without giving away any detail of the workings of
3 SIS which might be of use to people whose interests are
4 different from Britain's, how would you become involved
5 if there was an operational plan?
6 A. Well all significant plans, particularly those -- and
7 that is the majority, if not all of them -- requiring
8 class 7 authorisations and clearance would eventually
9 land on my desk and the staff responsible for preparing
10 that material worked directly to me.
11 Q. So anything that involved activities that would be
12 unlawful if carried out here and thus needed the
13 authority of the Secretary of State would cross your
14 desk in those circumstances?
15 A. Well, more than cross my desk; would have been my
17 Q. That is the period with which we are concerned,
18 the mid-1990s.
19 A. Yes.
20 Q. But can I wind you forward a little to when you were
21 assistant chief and chief? In those positions, were you
22 aware of significant operational activities?
23 A. I was aware of all significant operational activity.
24 Q. And no assassinations under your authority in any of
25 those posts?
1 A. No.
2 Q. Sir Richard, it may be that people listening to your
3 evidence would be surprised that every time SIS does
4 something which might be unlawful in ordinary terms,
5 even breaking into an office or whatever the case may
6 be, there is an elaborate procedure.
7 A. I think if you think about the activities of
8 an intelligence service within a modern democracy, you
9 begin to imagine the necessity for very strict
10 managerial control of such an organisation. I think
11 I have tried to spell out in my statement the clear
12 legal, managerial, administrative context within which
13 such an organisation functions.
14 Q. Well, turning to controls and thus, for the moment,
15 internal controls, you have mentioned that the
16 organisation was and is tightly managed. Can you
17 illustrate that in a way that explains it a little more?
18 A. Well I suppose the best illustration would be that any
19 significant operational proposal would be thoroughly
20 prepared, thoroughly discussed and then eventually would
21 be presented to me before it was transmitted to
22 the Foreign Secretary for the Foreign Secretary's
24 Q. So that is presented to you as head of operations, as it
25 were, in the mid-1990s.
1 A. Exactly, yes.
2 Q. Would it also then go through the board or the chief
3 before going to the Foreign Secretary or would that
4 depend on what it was?
5 A. It would depend on what it was. It would not go to
6 the board. It might well go to the chief. Anything
7 significant, when I was director of operations, would --
8 I would certainly have discussed with the chief, who
9 I would have seen on a constant daily basis.
10 Q. Now you have mentioned internal controls and management
11 structures and then there is the external controls. We
12 will just break them down, if we may.
13 As a result of those controls, what would your
14 comment be to a suggestion that rogue elements within
15 SIS, if such existed, could mount an operation of any
16 sort without authority, let alone an assassination,
17 which -- we have seen the Act -- would be, in
18 the circumstances we are dealing with, completely
19 outside of the scope of what SIS is there to do?
20 A. I would have regarded that as an impossibility.
21 Q. Looking at the staff you employ, how does SIS go about
22 satisfying itself that those employed within the
23 organisation at whatever level, whatever they do, are
25 A. There is a process of vetting. In SIS's case it is
1 referred to as "developed vetting", ie the most advanced
2 form of vetting for Crown servants.
3 Q. It may be inappropriate -- stop me if you think it is --
4 to ask too many details of precisely what goes on in
5 developed vetting, but would I be right in thinking that
6 you are looking, for those undertaking it, particularly
7 for honesty and integrity?
8 A. I would say that the basic qualification for holding
9 a valid vetting certificate is integrity; personal
11 Q. And would I be right in thinking that before anyone
12 achieves that status, of being developed vetted, if that
13 is the right phrase, some quite searching inquiries are
15 A. They are, in each and every case.
16 Q. If, in the course of that process, any past conduct that
17 gave rise to serious concern over integrity emerged, is
18 it conceivable that someone would pass developed
20 A. Without a valid certificate, you cannot be a member of
21 the service.
22 Q. What sort of things would present an obstacle to
23 developed vetting? Not every last one, please, but one
24 or two; some headline examples.
25 A. Essentially lying about your personal life or
1 demonstrating a lack of integrity in the way you behave,
2 either professionally or in some instances privately.
3 Q. Obviously if you have an applicant for a job and
4 the developed vetting process throws up serious
5 concerns, then the vetting process weeds out
6 the applicant effectively; he does not come to work for
8 A. Exactly. If you lose your vetting certificate, you can
9 appeal, of course, but if you lose that appeal, you
10 cannot then continue to be a member of the service.
11 Q. So that is the consequence if you have employed someone
12 and it is lost, they are out effectively?
13 A. Yes, that is the case. It is draconian, but that is the
14 way the service operates.
15 Q. But it is presumably viewed as necessary to protect
16 national security?
17 A. It is an essential part of national security, yes.
18 Q. So does it follow then that the developed vetting
19 process is repeated from time to time?
20 A. In every member of staff it is repeated -- every five
21 years I think the certificates are renewed.
22 Q. So that is one of the controls to ensure integrity.
23 One's perception of MI6 is conditioned by all sorts
24 of things which may be far from the truth, Sir Richard,
25 but in management terms, does SIS have chains of
1 command, for example, line management as exists
3 A. Of course it has chains of command. It has very strict
4 levels of line management, strict levels of
6 Q. To what extent do line managers involve themselves and
7 interest themselves and monitor what those underneath
8 them for whom they are responsible are up to?
9 A. Well, line managers also are expected to have a very
10 good knowledge of their staff and to be able to pick up
11 problems at an early stage, if they perceive something
12 that may be going wrong.
13 Q. Do line managers look at and become involved in planning
14 matters and budgetary matters and things of that sort?
15 A. Yes. All of that infrastructure and process is very
16 clearly there.
17 Q. Budget, again, looking in from the outside, one may
18 think that money is no object and anyone in SIS can
19 spend whatever they want whenever they want. Is that
20 the reality?
21 A. No, it is not. There are extremely strict levels of
22 what is called "financial authority".
23 Q. So does that mean that if any SIS officers, whether here
24 or abroad, were planning something that was going to
25 involve expenditure, they would need to seek authority
1 just as, rather boringly, people have to do in other
3 A. I fear so. You have to have very specific financial
5 Q. Would that apply, in your judgment, only to large-scale
7 A. Actually, in budgetary terms, it applies across
8 the board.
9 Q. Can I ask you about how line management operated for
10 people who were posted abroad? I would just like to lay
11 a little bit of ground.
12 We have heard from Sir Michael Jay as he was,
13 Lord Jay now, that there were SIS officers posted to
14 the Paris Embassy and he told us, I think, that it is
15 called a "station". Would I be right in thinking that
16 SIS has stations in a number of countries abroad?
17 A. Let us say in a number of countries.
18 Q. It would be perhaps rather surprising if they did not?
19 A. I think it would.
20 Q. And Paris was one of those where there was an SIS
22 A. Yes. In this instance, I think we can acknowledge that.
23 Q. I do not think the world will stop rotating on that one,
24 Sir Richard.
25 I do not want to know numbers or anything of that
1 sort but in general terms how would a station like Paris
2 be managed?
3 A. It would be managed very strictly from the UK. There
4 would be -- without going into detail -- a corresponding
5 structure in the UK to which it was linked, to which it
6 reported, which controlled all of its activities.
7 Q. Are your stations authorised to act independently of
8 head office in London?
9 A. No, they are not. In any significant matter, they are
10 controlled from London.
11 Q. That was the position, was it, in 1997, just as it is
13 A. Absolutely.
14 Q. And applied as much to the Paris station as to any
15 others that there might have been?
16 A. It certainly did.
17 Q. So that gives an idea of internal management structures
18 and so forth. What I would like to do with you next, if
19 I may, is look at compliance and oversight. You have
20 touched on already a number of the bodies that exist to
21 monitor SIS. Can we look in a little bit more detail at
22 one or two of those?
23 A. We can.
24 Q. You have said to the jury that anything that would be
25 unlawful here that you are going to do abroad needs an
1 authorisation from the Secretary of State under
2 section 7 of the Act.
3 A. Yes.
4 Q. Now how, in practical terms, did the process work? One
5 imagines that there was an idea, somebody said -- let's
6 take a hypothetical example. Somebody says, "We need to
7 break into this office to put a bug in there". It is
8 entirely hypothetical. How does it come up the chain
9 and what is the recording of it and the process?
10 A. There would be a plan written and described from
11 the appropriate section. It would come up through
12 several managerial filters as to whether the proposal
13 was viable. That proposal would also have to include
14 a passage of legal compliance. So there would be
15 a reference as to whether the proposed act would be
16 lawful under an ISA authorisation. When the paperwork
17 was completed, in essence -- and I mean, this would
18 apply, let's say, to an initiative overseas as much as
19 to an initiative that was developed within head
20 office -- and once those papers were completed, they
21 would be signed off by, let's say, the senior regional
22 official. They would come to me for further signature
23 and then they would go down restricted channels to
24 the Foreign Secretary.
25 LORD JUSTICE SCOTT BAKER: You have not mentioned the
1 ambassador of whichever place we are talking about.
2 MR BURNETT: That was my next point, sir.
3 A. If the proposal was originated in the field overseas,
4 there would have to be a passage in that proposal which
5 reported the ambassador's views, so that the local -- we
6 have used the phrase already -- head of station would
7 have had a discussion with the ambassador and the views
8 of the ambassador would be included within the papers
9 which would be sent by me to the Foreign Secretary.
10 Q. Now you have mentioned your legal compliance section.
11 As far as the operation of section 7 is concerned,
12 in paragraph 12 of your statement, you identify the
13 criteria that must be met before the Secretary of State
14 can grant such an authorisation. We will have a look at
15 them if we may, but before we do so, is it those
16 criteria that your own in-house lawyers look at to
17 satisfy you as the operational side that what you are
18 proposing would be lawful?
19 A. Yes. I mean, it was essential from the point of view of
20 the fact that one took legal advice from the service's
21 in-house legal team on all of these proposals.
22 Q. So SIS has an in-house legal department?
23 A. Yes, of course it does.
24 Q. Now are those criteria essentially these: that
25 the relevant acts are necessary for the proper discharge
1 of SIS functions? That is the first one.
2 A. Correct.
3 Q. So it follows then that the Secretary of State simply
4 cannot lawfully authorise anything that is outside the
5 proper functions of SIS?
6 A. No, he cannot.
7 Q. And there is a test of necessity?
8 A. Yes.
9 Q. Is it also a requirement that nothing is done on the
10 authorisation beyond what is necessary for the proper
11 discharge of SIS functions?
12 A. That is correct.
13 Q. In other words, it has to be tightly contained?
14 A. Yes.
15 Q. And that the nature and likely consequences of the act
16 will be reasonable, having regard to the purposes for
17 which they are carried out?
18 A. Correct.
19 Q. So that is really concerned with whether what is being
20 sought is proportionate to the benefit that would be
22 A. It is essentially the principle of proportionality.
23 Q. Or put in non-legal terms, you cannot use a sledgehammer
24 to crack a nut?
25 A. Correct.
1 Q. Then essentially the authorisation lapses after six
3 A. Automatically. It has to be renewed if it is still
5 Q. You have, within SIS, designated senior officers
6 personally responsible for ensuring that anything within
7 their responsibility that requires authorisation gets
9 A. Absolutely.
10 Q. So that is one of the management controls that is in
12 A. Yes.
13 Q. Now can I next move on to the Intelligence Services
15 I am sorry to trouble you with so much detailed
16 monitoring, but I suspect, to the world at large, all of
17 this is something of a mystery, even though all
18 the documents are in fact --
19 A. I do not think it is generally understood, the controls
20 within which the service operates.
21 Q. I do not recollect, Sir Richard, ever seeing the
22 Intelligence Services Commissioner or your legal
23 department feature in the many films that one sees that
24 purport to explain what you do.
25 Now, the Intelligence Services Commissioner is
1 a senior judicial figure, is he not? I say "he", but
2 they have been "hes" so far.
3 A. Yes.
4 Q. A senior judicial figure who has statutory
5 responsibility for the oversight of MI6. Is that a fair
6 enough crisp summary?
7 A. I would say "legal oversight".
8 Q. Thank you. Following the enactment of the Intelligence
9 Services Act in 1994, the Intelligence Services
10 Commissioner was the right honourable Sir Murray
11 Stuart-Smith, who was a Lord Justice of Appeal.
12 A. He was, yes.
13 Q. He did the job for five years, I think, and was
14 succeeded by the Right Honourable Sir Simon Brown, now
15 Lord Brown, who did the job for six years?
16 A. Yes.
17 Q. He too then a Lord Justice of Appeal, now a Law Lord.
18 A. Yes.
19 Q. One of the functions of the Intelligence Services
20 Commissioner was to review section 7 authorisations?
21 A. That is correct.
22 Q. That is one of his functions, and he provides reports to
23 the Prime Minister annually on that and other matters.
24 That report is laid before Parliament and published to
25 the extent that it can be, and if there is any material
1 that, for reasons of national security, cannot be
2 published, it is not?
3 A. It is not.
4 Q. That is how it works.
5 Now I wonder if we could look at the relevant report
6 of Lord Justice Stuart-Smith which covers 1997. It
7 starts at page 54 in the bundle that the jury has, again
8 simply to locate what I am talking about, "Report of
9 the Commissioner for 1997". Then one Sees "The Right
10 Honourable Lord Justice Stuart-Smith". Perhaps we could
11 go first to page 57. Sir Murray said this:
12 "In producing intelligence both SIS and GCHQ respond
13 to requirements laid on them by the Joint Intelligence
14 Committee or by the law enforcement agencies."
15 Just pausing there, GCHQ was also covered by
16 the Intelligence Services Act 1994, was it?
17 A. Yes, it was.
18 Q. We are expecting to hear from someone from GCHQ in
19 a week or two, so I shall not trouble you with them.
20 The Joint Intelligence Committee that the
21 Commissioner refers to, what is that?
22 A. The Joint Intelligence Committee is the body in
23 the Cabinet Office which consists of the heads of
24 the intelligence and security agency's senior officials
25 from the main ministries involved with issues of
1 national security. It develops intelligence
2 requirements, ie the tasks laid on the Intelligence
3 Service, and it also carries out a function of preparing
4 intelligence assessments for Government.
5 Q. So SIS and GCHQ respond to the requirements of
6 the Government for intelligence purposes through
7 the mediation of the Joint Intelligence Committee?
8 A. In effect, neither organisation is self-tasking; they
9 are tasked by the JIC.
10 Q. Now, Sir Murray went on to say:
11 "The chief of SIS and the director of GCHQ must
12 ensure that their respective agencies obtain only
13 information that they need in order to fulfil their
14 statutory functions and that there are safeguards in
15 place to ensure that the practices and procedures in
16 place for disclosing such information are adequate."
17 Now that, in fact, is a simple reflection of the
18 statutory duty laid on you by the Act, is it not?
19 A. It is, yes.
20 LORD JUSTICE SCOTT BAKER: Mr Burnett, when you reach
21 a convenient moment, we will need to have the
22 mid-morning break, otherwise the shorthand writer's
23 finger will be reaching the point of no return.
24 MR BURNETT: They are both smiling at the moment. Can
25 I finish with this report? It will only take four or
1 five minutes, and if that is convenient, we will stop
3 Can we turn to page 58 please? We have a number of
4 paragraphs, 6, 7 and 8, dealing with the discharge of
5 his functions. Is this what he said?
6 "I have examined all the applications for warrants
7 and renewal of warrants issued pursuant to section 5 of
8 the Act on an application from SIS and GCHQ in the year
9 ending 31 December 1997 and all authorisations issued
10 under section 7 during the same period."
11 Now, we are concerned with the section 7
12 authorisations; is that right?
13 A. Yes, it is.
14 Q. "This is with a view to satisfying myself that the
15 object of obtaining the information is in the discharge
16 of one of the functions of SIS or GCHQ, that the
17 required action appears to be necessary for obtaining
18 information which cannot be reasonably obtained by other
19 means and that it is likely to be of substantial value."
20 Then he goes on to describe various visits that he
21 has made. At paragraph 8 he says this:
22 "As a result of my review, I am satisfied that
23 the Secretaries of State have properly exercised their
24 powers under the Act."
25 A. Yes.
1 Q. Then, in the next section, he deals with errors that he
2 came across. Perhaps I might paraphrase rather than
3 read it all out. He found that an error had been made
4 on a GCHQ warrant, where two were sent up and the
5 Secretary of State signed the wrong one; not an SIS one,
6 as it happens.
7 A. That was a section 5 warrant.
8 Q. So it was not to do with section 7.
9 A. It was not to do with section 7.
10 Q. Ore the page, page 59, he deals with investigations of
11 complaints, the tribunal and complaints in relation to
12 property, and he notes in paragraph 14 that he has not
13 made a determination in favour of the complainant. Is
14 that right?
15 A. Yes.
16 Q. So can we take from that that the Intelligence Services
17 Commissioner saw all the section 7 authorisations and
18 was satisfied that they had been lawfully issued?
19 A. Yes, he scrutinised all of them.
20 Q. Are you able to confirm from your own knowledge -- it
21 follows from what you have said -- that no authorisation
22 was sought in respect of any activities concerning
23 Princess Diana?
24 A. I can absolutely confirm that.
25 Q. It would plainly have been outside the functions of SIS
1 to do so?
2 A. Had it been done, it would have been outside the
3 functions of the service.
4 Q. And thus the conclusions of the Commissioner confirm
6 A. They do.
7 MR BURNETT: Would that be a convenient moment, sir?
8 LORD JUSTICE SCOTT BAKER: Yes. We will break off now for
9 quarter of an hour.
10 (11.22 am)
11 (A short break)
12 (11.35 am)
13 (Jury present)
14 MR BURNETT: Sir Richard, for your, I hope, help in
15 identifying where broadly speaking I have got to in your
16 statement, I am going to turn to matters that you deal
17 with in paragraph 16 on page 9. You have mentioned
18 the various commissioners and there are passages in
19 the report of the Interception Commissioner for 2002
20 which you draw attention to.
21 If we turn to page 74 in the bundle, this is
22 the cover sheet of "Report of the Interception of
23 Communications Commissioner for 2002", the Right
24 Honourable Sir Swinton Thomas. By that stage, he was
25 a recently retired Court of Appeal judge, is that right?
1 A. Yes, it is.
2 Q. He had taken over from Sir Thomas Bingham --
3 A. (Witness nods).
4 Q. -- who was successively a Court of Appeal judge, Master
5 of the Rolls, Lord Chief Justice and is now the Senior
6 Law Lord.
7 A. Yes.
8 Q. This comes a few years after the events that we are
9 concerned with, and so it is not the detail of what
10 happened that year that you draw to our attention.
11 While we are on page 74, we can see in the middle that
12 the statutory regime has changed for interception.
13 It is no longer the "Interception of Communications Act
14 1985". It is now something with the title "Regulation
15 of Investigatory Powers Act 2005".
16 A. Yes, that is right.
17 Q. I need not trouble you with that Act, you will be
18 relieved to hear.
19 On page 79 of the extract that we have, you draw our
20 attention in your statement to this passage. It is
21 paragraph 8, members of the jury.
22 "I have been very impressed by the quality,
23 dedication and enthusiasm of the personnel carrying out
24 this work on behalf of the Government of the people of
25 the United Kingdom. They show that they have a detailed
1 understanding of the legislation and strive assiduously
2 to comply with the statutory criteria and, in my view,
3 there is very little, if any, danger that an application
4 which is defective in substance will be placed before
5 the Secretary of State."
6 So this is concerned with interception warrants?
7 A. It is, yes.
8 Q. "Where errors have occurred, which I refer to below (and
9 in detail in the confidential annex) these have been
10 errors of detail and not of substance. All errors are
11 reported to me and if there is any product, it is
12 immediately destroyed."
13 By "product", what is the Commissioner referring to
15 A. Material from intercept operations.
16 Q. So if there has been an interception in respect of which
17 there has been an error, the product is immediately
19 A. Yes.
20 Q. He goes on:
21 "In conforming to the statutory duty placed on them,
22 the agencies have made available to me everything that
23 I have wished to see or hear. They welcome the
24 oversight of the Commissioner both from the point of
25 view of seeking his advice, which they do quite
1 frequently, and as a reassurance to the general public
2 that their activities are overseen by an independent
3 person who has held high judicial office. I am also
4 left in no doubt as to the agencies' anxiety to comply
5 with the law. In a case of doubt or difficulty, they do
6 not hesitate to contact me."
7 Now those are observations which Sir Swinton
8 recorded a few years after the time that we are focusing
9 on. In your view, was the position different in 1996
10 and 1997 or the same?
11 A. Not at all. I think it is indicative of the ethos and
12 attitude of the staff in the service towards observing
13 the law.
14 Q. Then you draw attention to another more recent report
15 from the Intelligence Services Commissioner. So that is
16 the commissioner concerned particularly with SIS. That
17 is right, is it?
18 A. Yes, it is.
19 Q. Lord Brown of Eaton-Under-Heywood. Perhaps we can go to
20 page 91 in the bundle.
21 This is the front page of Lord Brown's report, is
22 that right?
23 A. Yes, it is.
24 Q. It is concerned with the detail of 2005 and 2006.
25 A. Yes.
1 Q. Can we look next, please, at page 95? This is a letter,
2 is it not, from Lord Brown to the Prime Minister of
3 the day, enclosing his report? We see in the first line
4 that this is his sixth and final annual report.
5 A. Yes, that is right.
6 Q. Page 96, just over the page, please, he records in
7 paragraph 1:
8 "On 1st April 2000 I was appointed both Commissioner
9 for the Security Service under section 4 of the Security
10 Service Act 1989 and Commissioner for the Secret
11 Intelligence Service and Government Communications
12 Headquarters under section 8 of the Intelligence
13 Services Act 1994."
14 Now, from that are we right to understand that
15 the Security Service or MI5 is subject to the Security
16 Service Act 1989 and there is judicial oversight through
17 a commissioner there as well?
18 A. Yes, that is correct.
19 Q. Could we go to page 104, please? I think that has
20 the first passage on it that you wish us to look at.
21 It is paragraph 40 which Lord Brown describes as
22 a postscript.
23 "In signing off this, my sixth and final report,
24 I would like to put on record my appreciation of the
25 very considerable assistance and cooperation that I have
1 received throughout my time in office as commissioner
2 from all those both in the various intelligence agencies
3 and from the issuing departments of state with whom
4 I have had dealings. I would like to record too my
5 strong belief that each of the intelligence agencies
6 nowadays is properly to be regarded as a highly
7 professional and disciplined service employing a large
8 number of committed officers and staff of real quality.
9 It is right that commissioners (and other bodies such as
10 the Parliamentary Intelligence and Security Committee)
11 should be ever vigilant to ensure the services' strict
12 compliance with the legal constraints placed upon them.
13 But it is right too to record my own judgment that
14 the services themselves are intent on acting
15 scrupulously within the confines of the law. In recent
16 years, as is well known, they have had their troubles in
17 the gathering and evaluation of intelligence critical
18 tasks as must be obvious to all. Happily, however,
19 legal compliance has not proved to be a significant
21 LORD JUSTICE SCOTT BAKER: Mr Burnett, I am a little puzzled
22 because if you look at page 91, we have the report for
23 2005/2006. Page 96 speaks of the report for 2004, and
24 yet page 104 appears to be Lord Brown signing off at the
25 end of six years, which would be the 2005/2006 report.
1 MR BURNETT: You are quite right, sir, and I think what has
2 happened is that a part of the 2004 report has become
3 interpolated into the middle of the later one.
4 LORD JUSTICE SCOTT BAKER: Yes.
5 MR BURNETT: So that the postscript that we are looking at,
6 Sir Richard --
7 LORD JUSTICE SCOTT BAKER: Belongs to 2005/2006?
8 A. Yes, it does.
9 MR BURNETT: Lord Brown's last report?
10 A. Yes. It is his sign-off at the end of his period of
12 LORD JUSTICE SCOTT BAKER: Yes. I am not quite sure why
13 the 2004 report or part of it has gone in and which part
14 is the 2004 report.
15 MR BURNETT: I am sure, sir, you are right that part of
16 the 2004 report is out of order.
17 LORD JUSTICE SCOTT BAKER: The odd thing is that the
18 paragraph numbers seem to add up.
19 MR BURNETT: Yes.
20 MR TAM: Sir --
21 LORD JUSTICE SCOTT BAKER: Ah, Mr Tam has the answer.
22 MR BURNETT: I am grateful to Mr Tam for rising to his feet.
23 I am sure he can help.
24 MR TAM: Sir, if you go to page 96 and look at paragraph 2,
25 you will see that Lord Brown says that on
1 2nd October 2000, when parts of the 2000 Act, RIPA, came
2 into force, he became and had since held the office of
3 Intelligence Services Commissioner.
4 "My current three-year appointment expired [that is
5 past tense] on 31st March 2006."
6 So that last sentence is entirely consistent with
7 what you see on the cover sheets and indeed on the very
8 last page, page 104, as his postscript signing off his
9 final report.
10 LORD JUSTICE SCOTT BAKER: It is not consistent with
11 the heading at the top of page 96.
12 MR TAM: Precisely. So the obvious explanation is that the
13 heading contains a typo, but that is the only thing that
14 is wrong. Everything else in the report is obviously
15 the 2005/2006 report.
16 LORD JUSTICE SCOTT BAKER: You have the original somewhere,
17 have you, of this?
18 MR TAM: I am sure we can find an original of the printed
19 document. I suspect we only have photocopies here --
20 LORD JUSTICE SCOTT BAKER: Is it the printed document that
21 has the typo on it or has there been a mistake in
23 MR TAM: No, we think that the printed document must have
24 the typo, but we will check that when we get it.
25 LORD JUSTICE SCOTT BAKER: It is astonishing if nobody
1 spotted it.
2 MR TAM: I cannot make any comment about that.
3 MR BURNETT: Sir, it is also obvious from paragraph 3 on
4 page 96 that what Mr Tam says is right. As you say, it
5 may not be surprising that I did not notice "2004", but
6 it is surprising that others had not.
7 So that is his postscript at the end of his period
8 of service as commissioner. Is what he has said, in
9 your view, as applicable to the few years that preceded
10 his appointment as those that followed?
11 A. Yes, absolutely.
12 Q. You also draw our attention to paragraph 30 of the same
13 document, which is on page 102, where Lord Brown refers
14 to duties imposed on members of the intelligence
15 services. He said this:
16 "It is the duty of every member of each intelligence
17 service, every official of department of every relevant
18 Secretary of State and every member of Her Majesty's
19 forces to disclose or provide to me all such documents
20 and information as I may require to enable me to carry
21 out my oversight functions."
22 He refers to the current legislation rather than
23 the old legislation and then goes on:
24 "I have enjoyed, therefore, very wide powers to
25 ensure that I obtained maximum assistance from those
1 I saw during my reviews. In exercising these powers
2 throughout the course of my appointment, I experienced
3 the fullest possible cooperation on the part of all of
4 those concerned. Indeed, members of various agencies at
5 all levels have always appeared keen to confide in me
6 all possible relevant information and, where
7 appropriate, to share with me their concerns. I remain
8 firmly of the opinion that I expressed in my previous
9 reports, that all staff in this difficult and
10 challenging area of work have been trustworthy,
11 conscientious and dependable."
12 Do you regard that as a fair assessment of SIS in
13 the period that preceded Lord Brown's reports, just as
14 those that followed?
15 A. Yes, I certainly do.
16 Q. Now there Lord Brown has referred to cooperation that he
17 received. Do the commissioners -- that is to say the
18 Intelligence Service Commissioner and the Interception
19 Commissioner, operate simply from paper or do they meet
20 members of the agencies and visit the agencies?
21 A. They visit the agencies, they speak extensively with
22 the staff, both at home and overseas, and they have
23 unrestricted access to papers which they can call
25 Q. Does that mean that the commissioners visit overseas
1 stations from time to time?
2 A. Yes, they do.
3 Q. And presumably also have extensive discussions with
4 senior members of SIS and not just the chief?
5 A. With any senior members of the service, but both senior
6 and junior members.
7 Q. What would happen to any member of SIS who tried to
8 interfere in the scrutiny work of the commissioners or
9 in some way impede their freedom of access?
10 A. I do not know of it ever happening. The penalties would
11 be severe. It would be an integrity issue, therefore
12 you would probably lose your vetting certificate.
13 Q. So there, Sir Richard, you have given the jury an
14 indication of the range of controls that operate outside
16 I would like to move on now to a few questions
17 touching the events in August 1997. Now you have told
18 the jury already that there was no assassination plan.
19 A. That is correct.
20 Q. You have told them that you were aware of all
21 significant operational work carried out by the SIS in
23 A. Yes.
24 Q. If you, for any reason, were away from the office, on
25 holiday for example, how would the role of head of
1 operations be handled in logistical terms?
2 A. Well, at that time, the then chief, Sir David Spedding,
3 would act as chief of operations in my absence. He had
4 previously been the chief of operations and he enjoyed
5 doing it.
6 Q. I think Sir David is no longer alive.
7 A. Sir David is, I am afraid, deceased, yes.
8 Q. Is it right that you were in the US between 21st August
9 and 11th September that year?
10 A. Yes, I was in holiday in the United States.
11 Q. Did you have secure telephone contact with the office
12 during that period?
13 A. Yes, I did.
14 Q. Was there any operation of any kind mounted against or
15 in respect of the Princess of Wales or Dodi Al Fayed
16 during that summer?
17 A. Absolutely not.
18 Q. So that would include, would it, all such things as
19 eavesdropping, surveillance, bugging, anything that
20 anyone can think of?
21 A. Everything.
22 Q. With what degree of confidence are you able to tell
23 the jury of that fact?
24 A. Complete confidence.
25 Q. What about a suggestion that the Paris station or
1 perhaps someone in the Paris station was freelancing at
2 the end of August 1997?
3 A. Out of the question. It is just not conceivable within
4 the structures that I have described, and I should add
5 that any and every part of the service was under my
6 control in terms of operations.
7 Q. Now, you are aware, aren't you, that it is suggested
8 that the French security apparatus and the French police
9 and the French medical services and the French
10 pathological services -- I think that is all of the
11 French -- were in on a plot of some sort which would
12 suggest, Sir Richard, that you in MI6 or
13 Prince Philip -- and we will come to him in a moment --
14 somehow could control the French state. Now I must give
15 you an opportunity to comment on those allegations.
16 A. Well, it is a mischievous and fanciful allegation.
17 Q. Can I turn to Prince Philip? Again, so that one
18 understands what is being suggested, stripped to its
19 bare bones, it is that Prince Philip was in a position
20 to direct MI6 operationally and that he did so from
21 Balmoral Castle, with the Prince of Wales' involvement,
22 Lord Fellowes, Lord Jay, various others, and executed
23 a conspiracy which resulted in the deaths of
24 Dodi Al Fayed and the Princess of Wales. I am putting
25 it simply and without any hyperbole.
1 What was Prince Philip's relationship with
2 the Secret Intelligence Service in the mid-1990s, but
3 please cover the whole period if there is any
5 A. Absolutely nothing of substance. I say "nothing of
6 substance" because I think there were one or two
7 occasions when he visited the service as Her Majesty's
9 Q. Now, we have heard -- again, it would come as no
10 surprise to anybody -- that the service would be
11 involved in providing security advice for foreign visits
12 of the Royal Family.
13 A. Occasionally.
14 Q. But to the suggestion that --
15 A. But I might say not directly. The security assessments
16 would be gathered through the embassy to which
17 the service might make a contribution.
18 Q. So to the suggestion that Prince Philip was an active
19 operational member of MI6, what do you say?
20 A. I can say nothing other than it is utterly ridiculous.
21 Q. Is the same true of Prince Charles?
22 A. The same is true of Prince Charles.
23 Q. Now, it is suggested -- again, I try to strip it to
24 the bare bones -- that Prince Philip and the
25 intelligence agencies really run this country and that
1 we are not a Parliamentary democracy at all. Again,
2 I must give you an opportunity to comment on an
3 allegation that you, as head of MI6, and no doubt your
4 counterparts in the other agencies are in fact running
5 this country behind the scenes with Prince Philip.
6 A. I do not want to be flippant. I am tempted to say I am
7 flattered, but once again, this is such an absurd
8 allegation. It is difficult to deal with an allegation
9 which is so absurd. It is completely off the map.
10 I cannot think of any other way of saying it.
11 Q. There are two particular points of detail that I would
12 like to trouble you with, if I may. I am conscious that
13 a large number of SIS witnesses are carded to come over
14 the next week who can deal with detail, but the first is
15 this: you are aware, are you not, that it has been
16 suggested by Richard Tomlinson that there was a plan to
17 assassinate President Milosevic of Serbia which he saw
18 in, he would say, 1992. You are aware of that?
19 A. I am aware of that.
20 Q. When did you first become aware of that allegation?
21 A. I think probably -- and it is a long time ago -- but
22 when I became aware of the content of Tomlinson's book.
23 Q. Was that when a draft was delivered up following an
24 injunction in November 1996?
25 A. Yes, I believe it was probably then.
1 Q. Now, just remind us, Sir Richard, in 1996 you had yet to
2 become assistant chief, I think.
3 A. I was not. I was the director of operations at that
5 Q. So were you at all personally involved in any
6 investigations or inquiries that were made internally
7 about that matter?
8 A. Well, when it came to light through what
9 Richard Tomlinson had written in this book, obviously
10 this was then looked into.
11 Q. And with what result?
12 A. With the result that he was recalling an incident which
13 had occurred in the section in which he worked in
14 I think 1992 or 1993, but it did not refer to
15 Slobodan Milosevic.
16 Q. Now we are going to hear next week from the author of
17 what it is suggested Mr Tomlinson saw. What is your
18 understanding of what occurred?
19 A. An officer working in one of the sections to do with the
20 Balkans had suggested the possibility of assassinating
21 another political personality who was involved in ethnic
23 Q. What happened to that proposal?
24 A. Well, the proposal was essentially rejected -- I would
25 say killed stone dead -- by the officer's line managers
1 on the basis that his idea was out of touch with service
2 practice, service ethos and that it was not a proposal
3 to which any serious consideration would be given.
4 Q. Again, we will be hearing from one or two people
5 involved in that process, who suggest that the proposal
6 which had been written down was destroyed.
7 A. Well, as far as one can establish after the event, it
8 had been written down on a minute sheet, but in fact
9 the minute sheet had not been circulated, ie it still
10 remained with the originator, with the originating piece
11 of the organisation, and because this was an idea which
12 was entirely stillborn and the paper was going to be of
13 no consequence in terms of any follow-on action,
14 the paper was destroyed.
15 Q. Again, Sir Richard, I do not want to take you into
16 territory of which you have no personal knowledge, and
17 we will be hearing from the author of the minute and two
18 or three other people involved, but we heard from
19 Mr Tomlinson last week that it is inconceivable that
20 such a document could have been destroyed. He went so
21 far as to say there were no shredders in MI6 at the
23 LORD JUSTICE SCOTT BAKER: He said it was a hanging offence
24 to destroy it.
25 MR BURNETT: He did.
1 A. That is not actually correct. My understanding of these
2 events is that the document had been typed and it had
3 been given a reference number, but it still remained in
4 the section. So it had not, as it were, moved out of
5 the vicinity of its originator.
6 In those circumstances, because the document had no
7 relevance, because it was not going to be anything on
8 which a decision was taken, the document was destroyed
9 and the reference number was almost certainly
10 re-allocated to another piece of paper being originated.
11 Now, this is a rare event, but it is not an
12 impossible or unusual event, so -- and it could
13 certainly have been destroyed at origin; ie, the
14 originator who produced it destroyed it under
15 instruction from his own line management.
16 Q. The question arises how, if you are right in saying that
17 SIS does not contemplate assassination, one of its
18 officers could have raised the possibility and committed
19 it to writing in 1992 or 1993.
20 A. A very unusual event, I agree, but the service does not
21 control the thoughts of its officers and did not in this
22 particular instance, clearly. But I think that the
23 immediate reaction of the officer's line management to
24 this suggestion shows a very consistent attitude to
25 the issue of assassination which I have previously
2 So the fact that the idea was so categorically
3 rejected at a level immediately above the officer -- you
4 know, it has not gone through stages upwards -- I think
5 indicates very clearly indeed what I have said about
6 SIS's attitude to assassination and, by implication, Her
7 Majesty's Government's attitude to assassination.
8 Q. Now, there is a very well-known allegation of planned
9 assassination that I wish to ask you about. It has been
10 suggested widely and publicly that, in February 1996,
11 SIS conspired with one of its Libyan agents to
12 assassinate Colonel Gaddafi. Now, first of all, just to
13 locate that in time, you were head of operations at the
15 A. I was indeed head of operations at the time.
16 Q. Were you the chief of the service when that allegation
17 emerged publicly?
18 A. Yes, I was.
19 Q. Is it true?
20 A. No, it is not true, and I think one should add that --
21 this is an allegation that was made by a former Security
22 Service officer, David Shayler. It was fully
23 investigated by the Metropolitan Police, who sent a team
24 into SIS. They were given full access, full
25 cooperation, and it was shown as a result of their
1 investigation that Shayler's allegations were without
3 Q. Now, Shayler, you say, was a former Security Service
4 officer; that is MI5 --
5 A. MI5.
6 Q. -- not MI6, as it happens.
7 A. Not MI6.
8 Q. So investigated by the Metropolitan Police?
9 A. An independent police investigation, which was ordered
10 by the Crown Prosecution Service.
11 Q. You have said what its conclusions were. Did you
12 obviously, as chief, take a close interest in that?
13 A. I took an exceptionally close interest.
14 Q. Do you have any doubts about the correctness of that
16 A. I have no doubts whatsoever, nor did I from the start of
17 the investigation.
18 MR BURNETT: Thank you very much, Sir Richard.
19 LORD JUSTICE SCOTT BAKER: Mr Mansfield?
20 Questions from MR MANSFIELD
21 MR MANSFIELD: Good morning, Sir Richard. My name is
22 Michael Mansfield and I represent Mohamed Al Fayed.
23 I have a number of questions.
24 The preface I wish to make as I have done -- you may
25 have read some of the transcripts or followed them in
1 relation to this area -- that I have been very careful
2 in the questions I have asked, and it has been no
3 intention to embarrass any witness from the security
4 services generally or any individual and produce names
5 and modus operandi. Do you understand?
6 A. Yes, I do.
7 Q. If there is any fear, of course you yourself or your
8 representative can intervene.
9 Now I am going to ask you, I am afraid, in a little
10 detail, when was it that you were first asked to make
11 a statement about matters, do you know?
12 A. For this inquest?
13 Q. Yes.
14 A. I do not recall precisely when, but it was quite
16 Q. Well when was it?
17 A. I would say it was some time in the autumn.
18 Q. Of which year?
19 A. Last year.
20 Q. Last year?
21 A. 2007.
22 Q. What was the statement? Was it a handwritten statement?
23 A. Was my statement handwritten?
24 Q. Mm.
25 A. No, it was originally typed.
1 Q. By you or dictated and typed by someone else?
2 A. Well, let's cut to the chase. I had a lot of assistance
3 preparing this statement, but the version which you have
4 in front of you is my statement which has been
5 thoroughly worked over by me.
6 Q. I am going to take it in stages even in relation to this
7 issue. Did you make a statement and sign a statement in
8 the autumn of last year? Is that your recollection?
9 A. I think I signed this statement probably in 2008.
10 Q. Yes, this statement. But are you saying this is
11 a statement that you signed in 2008 but you made in
12 2007? Is that what you are saying?
13 A. No, I am not saying that at all.
14 Q. No?
15 A. I am saying I worked on this statement in the period
16 between when I was asked to give evidence to this
17 inquest and before submitting -- I am just trying to
18 remember the date on the bottom now.
19 Q. The date on this is 4th January 2008.
20 A. Well, there we are.
21 Q. So this was a statement that was worked on by you and
22 who else?
23 A. I was given assistance by the legal team in SIS.
24 Q. Well, what sort of assistance?
25 A. In preparing the material. I have been retired for
1 nearly three and a half years, and clearly going back
2 over this ground, if I was going to produce something
3 accurate, helpful and complete for the court, I think
4 this is exactly what one would expect.
5 Q. I will come to completeness, and recognising of course
6 that you had retired, so I do not want to be too
7 particular, but some time in the autumn of last year you
8 started the process of compiling a statement with
9 the assistance of others. Did you ask for
10 the production of documents from the Security Service
11 or, to be more precise, from MI6? Did you ask for
12 documents that you could look at to refresh your memory?
13 A. I certainly, where it was necessary, requested sight of
14 documents relevant to this statement, yes.
15 Q. Were they forthcoming, the documents?
16 A. Yes, they were, when I needed to see them.
17 Q. Right. If I may, I am going straight to the heart of
18 part of this. If you would just look at the 14th page
19 of your statement, please, the one signed in January --
20 just before we do, how many drafts of this statement
21 were made before the final one was signed?
22 A. I should imagine that I made a considerable number.
23 Q. Right. So I ask for disclosure of all earlier drafts
24 please. You see, we have not had disclosure of any
25 drafts other than this one. So would there be roughly,
1 what, half a dozen drafts?
2 A. Maybe three or four.
3 Q. Three or four drafts. So I ask for that first of all.
4 You will see on page 14 that you deal with
5 the alleged plan in relation to Richard Tomlinson's
6 descriptions that he has given. I am going to take you
7 very carefully through this. I am going to start with
8 the obvious proposition that you have indicated very
9 clearly this morning. If the jury need to
10 cross-reference it, it comes in the Hansard debates that
11 we have already been through. There is one page where
12 it is made very clear, page 10 of the bundle, in
13 the debates by Mr Hogg:
14 "Assassination is no part of the policy of Her
15 Majesty's Government."
16 That is in column 1, with "35" at the top. "36" is
17 the next column, towards the bottom. The page is 10:
18 "Assassination is totally out of the frame."
19 Do you see that, page 10?
20 You said this morning that that is a very clear
21 policy. Correct?
22 A. Yes.
23 Q. Right, just before we get to go through this, all
24 operatives or officers in the SIS, as you have
25 indicated, go through careful vetting, and then, if they
1 succeed in surviving that process, they go through
2 careful training, is that right?
3 A. Correct.
4 Q. So part of their training must be to make Government
5 policy very clear; correct?
6 A. Correct.
7 Q. So are you saying that during their training, officers
8 are clearly told that thoughts of assassination on
9 behalf of the British Government are out of the
11 A. They are told that assassination is not part of the
12 service's activities.
13 Q. I want to be clear: out of the question?
14 A. Not part of -- well, that is your choice of words.
15 I used a slightly different formulation.
16 Q. I am being very careful because, as we shall see when
17 I come to various letters, the way things are worded in
18 public is very careful, and if I may put it to you,
19 sometimes weasel words are used so that unless you ask
20 the right question, you don't get the answer. Do you
21 follow what I am saying here? Do you follow that?
22 A. Yes.
23 Q. Right. Are the officers told that under no
24 circumstances must assassination be considered, let
25 alone carried out?
1 A. Again, those are your words, not mine.
2 Q. What is the answer?
3 A. That phrase might be used, yes.
4 Q. I am sorry? Might be used?
5 Sir Richard, this is a very simple and initial
6 question. The follow-up question is this: if you don't
7 remember what they are told, is there a training manual
8 for officers in the SIS?
9 A. I am not going to start answering questions about SIS
10 training, which is rather specific.
11 Q. No, I have not even got to that and I am not even asking
12 about method. I said that at the beginning. Is there
13 a training manual? That is a very simple question.
14 A. There are training manuals, obviously.
15 Q. Given that it is not Government policy to even consider
16 it, let alone carry it out, do any of the training
17 manuals make that clear?
18 A. This would be made clear orally to trainee officers.
19 Q. So what is the answer to the question?
20 A. The answer that I have given you, that this would be
21 made clear orally.
22 Q. You see, I am going to ask you the question again so
23 that we may get a direct answer from you, Sir Richard.
24 I will make it easier for you by actually indicating
25 the answer in the question. Is it right to say that
1 there is no training manual that indicates clearly in
2 writing that contemplation or consideration of
3 assassination, let alone its execution, is to be
4 considered or whatever? Is that right?
5 A. I do not think there is a training manual in which this
6 is written down, if that is what you are driving at.
7 Q. That is right. The first question I want to ask you
8 therefore on that is why not.
9 A. Well, I think if you read -- let's go back to
10 the minister's statement in the Parliamentary debate.
11 I think if you read that, you will see why not.
12 Q. Well, just point out why, on page 10, it is not in any
13 written training manual for officers in SIS as
14 a preamble to any tasks, operations or whatever; what is
15 the reason on page 10 that it is not given to officers
16 in writing during their training?
17 A. Well, I think, as I have absolutely made clear,
18 assassination is not part of the service's activities,
19 and you, in your questioning, are making it sound as
20 though this is part.
21 Q. No, I had not said that at all. You see, we are
22 eventually going to get into the aspect of the case
23 relating to Richard Tomlinson.
24 Well, let's have a look at what the minister said,
25 shall we, at page 10, as you have been asked to go
1 through all of this. It is Mr Hogg's response in
2 column 35:
3 "Forgive me, that is not to follow what I said ..."
4 Do you have page 10?
5 A. I have.
6 Q. It is column 35:
7 "Forgive me, that is not to follow ..."
8 I will put the whole context so nothing is taken out
9 of context.
10 "... what I said at the beginning of my speech. All
11 the services and the law enforcement agencies are
12 subject to the law of the land unless that law is
13 disapplied or unless their powers are extended.
14 Therefore, because the honourable gentleman raised
15 the issue, we are now talking about acts of violence in
16 the United Kingdom. That was the question. If it be
17 murder, it is murder. If it be grievous bodily harm,
18 it is that. Those acts are not disapplied anywhere in
19 the Bill. The only disapplying procedure, as we are now
20 talking about internal acts, is in clause 5.
21 "The main point made by the honourable member for
22 Sunderland South was about acts of force abroad. That
23 is unlawful unless it is covered by a clause 7
24 authorisation. The Secretary of State would not, in
25 ordinary circumstances, issue a clause 7 authorisation
1 in respect of the use of force."
2 Now, pause there for the moment. Is your
3 understanding that there may be circumstances where one
4 is issued?
5 LORD JUSTICE SCOTT BAKER: Well, Mr Mansfield, if we look
6 back at page 9, very near the bottom of the page in
7 the right-hand column:
8 "It is inconceivable that in ordinary circumstances,
9 my right honourable friend the Secretary of State or any
10 of his successors -- or for that matter, predecessors --
11 would authorise the use of lethal force."
12 Well, that observation suggests that there may be
13 extraordinary circumstances.
14 MR MANSFIELD: Yes, which is, I would submit, the reflection
15 and echo in this paragraph that we are dealing with.
16 So can I just move to the next sentence because
17 the same word is used. That is page 10, the main point:
18 "I say 'ordinary circumstances' because I can
19 conceive of circumstances -- and so can the honorable
20 gentleman -- when it would be right to do so."
21 This is just the authorisation level. What sort of
22 circumstances -- and I am only dealing with general --
23 would it be right to do so extraordinarily?
24 LORD JUSTICE SCOTT BAKER: That is a speculative question,
25 isn't it?
1 MR MANSFIELD: All right. I will go to the next sentence:
2 "Examples would be emergencies or crises causing
3 great damage to Britain or her citizens. I do not want
4 to exclude the ability to do so in those circumstances,
5 but I can say that assassination is no part of the
6 policy of Her Majesty's Government."
7 Then, of course, on the other column:
8 "Assassination is totally out of the frame."
9 You see, just starting at this level -- and I am not
10 trying to embarrass anybody. I am trying to get to what
11 is the mindframe of officers who come into
12 the service -- what is in writing about the policies of
13 assassination or no assassination that they will receive
14 in writing? At the moment, the position is they get
15 nothing in writing, is that right?
16 A. I think that is probably true, but I have been retired
17 for four years.
18 Q. In your time, I mean.
19 A. In my time, I think I can say that they received nothing
20 in writing.
21 Q. The reason I am asking you this is very particularly
22 that Mr Tomlinson indicated that, in fact, when
23 questions like this were raised during training, there
24 was obfuscation and no real answer was given; in other
25 words, they were not told that it was out of the
1 question. Do you follow?
2 LORD JUSTICE SCOTT BAKER: Well, I think that is not
3 precisely accurate of what his evidence was. I think he
4 said that there were two occasions when this was raised,
5 not perhaps in the training session itself but in
6 the bar afterwards, and that on two occasions, he got
7 a blank stare rather than an answer, or at least no
8 answer, but there was another occasion when he said that
9 he did ask the question and he got the firm answer that
10 it was not on.
11 MR MANSFIELD: He also used the word "obfuscation", so ...
12 LORD JUSTICE SCOTT BAKER: We can get the detail off
13 the LiveNote transcript if necessary.
14 MR MANSFIELD: Yes, I have them here.
15 What I want to ask you is this: is that your
16 recollection of the oral position, namely that there
17 were no clear instructions being given during the oral
19 A. There are clear instructions given orally.
20 Q. That is your understanding, is it?
21 A. That is certainly my memory and understanding.
22 Q. How long is the training normally? How long was it at
23 that time, just roughly speaking?
24 A. Months.
25 Q. A month?
1 A. Months, several months.
2 Q. Now, in relation therefore -- still dealing with --
3 which I am coming to on this particular page -- namely
4 the question of his coming into contact with the plan,
5 you first became aware of this proposal much nearer
6 the time than now, namely in 1996; that is your
7 recollection, is it?
8 A. My recollection is that I learned of it through what was
9 in the manuscript of Tomlinson's book.
10 Q. This must have concerned you because one -- it was
11 called the "I Spy" manuscript, as it was then called --
12 because not only did it talk about the proposal, it
13 actually named officers, didn't it?
14 A. Yes, I think it did.
15 Q. So, therefore, in November 1996, as head of operations,
16 this must have been of great concern to you, must it
18 A. I was certainly concerned when I learned this, yes.
19 LORD JUSTICE SCOTT BAKER: Also, I suspect it said that your
20 vetting procedures were not absolutely foolproof, as
22 MR MANSFIELD: Yes. You see, it is not a joke, is it?
23 A. It was certainly not a joke.
24 Q. When you came to compile this part of your statement,
25 did you ask for help?
1 A. Yes, I did.
2 Q. What help were you given?
3 A. I was given the assistance of the services' lawyers.
4 Q. I am not asking for any confidentialities. I am just
5 asking: first of all, were you provided with any
7 A. I was provided with documentation, as this was --
8 I mean, relevant documentation was available to me.
9 I thought I had made that clear.
10 Q. Yes, you have, but I am going to come to what does not
11 appear to be made available, unless you tell us it was
12 and you have not seen it.
13 Now, having become aware in November 1996 that A was
14 being named in a book or identified in a book as
15 the author of a proposal -- and you presumably had not
16 heard a word about that before November 1996, is that
18 A. I cannot be categorical about this. It was 15 years
19 ago. But my predominant memory of this incident is that
20 I learned it from Tomlinson's book. It is quite
21 possible that the memory of Tomlinson's book overlays an
22 earlier conversation, but I cannot categorically under
23 oath say that I recall it because that would be ...
24 Q. You may now gather where I am going with this, because
25 I want to know from records, if they exist, when in fact
1 you did first learn of the proposal and whether you
2 asked anyone who was assisting you, "Could you kindly go
3 back to the records and see if there is anything which
4 will help me about when I in fact found out about it?"
5 Did you ask that question?
6 A. I did not ask that specific question.
7 Q. Did anyone assisting you produce to you a document
8 indicating when you had first learned of the proposal
9 beyond the provision of the draft of the book?
10 A. No, they did not.
11 Q. Now assuming for the moment, just for the moment, that
12 it was not before November 1996, in other words, nearer
13 the time that it occurred, and A in fact suggests that
14 it was 1993 -- did you, in November 1996, immediately
15 cause there to be an internal investigation about how
16 a man such as A could even be making such a proposal?
17 A. Well, of course this was looked into at the time.
18 Q. You see, we don't have any of this and it is the first
19 time that there has been an opportunity, as it were, to
20 get behind it. So I am going to ask you either with
21 assistance or without it -- and there is a lunch break
22 coming up soon -- who did you ask to conduct the
23 investigation internally?
24 MR TAM: Sorry, before the witness answers that, can
25 I clarify that my learned friend is not seeking a name
1 at this point?
2 MR MANSFIELD: No, I make it clear -- well, if there is
3 a problem, I will do it in stages.
4 Is it possible to identify the rank or level of
5 person who was instructed to make an inquiry, an
7 A. My Lord can I comment? It seems to me we are a huge
8 distance away from the subject of this inquest. We are
9 delving into bits of SIS history which seem to me, in
10 terms of my statement, to have absolutely no relevance
11 whatsoever to what happened in Paris, and I do --
12 I mean, I would really like some explanation as to
13 the relevance of this line of questioning, given the
14 particular turn it is taking now.
15 LORD JUSTICE SCOTT BAKER: Well, Sir Richard, these inquests
16 have been very wide-ranging and many aspects of
17 the evidence, many would say, have only marginal, if
18 any, relevance to the issues that have to be decided.
19 But the one matter that I have had very much in mind
20 throughout is that one of the purposes of the inquests,
21 perhaps particularly pertinent to this one, is to
22 confirm or allay public suspicion. That is what has
23 caused me to allow a great deal more latitude than would
24 ordinarily be the case, but there is a limit.
25 A. Thank you, my Lord.
1 MR MANSFIELD: Well, I will make it clear to you why I am
2 asking you the questions, in case you are not aware.
3 Richard Tomlinson is indicating that there was
4 a proposal and that the proposal had certain
5 similarities to what happened in Paris. That is
6 the first point. Second point: what he is really saying
7 in his evidence is that the theory of the security
8 services as to how it should operate and the practice
9 can be different; in other words, there may be things
10 countenanced within the service that do not exactly
11 match the structures and the controls in place. Now, do
12 you understand?
13 A. I do, but I think I have made it very clear, very clear
14 indeed, that that is not the case.
15 Q. Well, that is why I want to ask you these questions. So
16 you know where I am going, I am going to ask you now: is
17 there a single document relating to the investigation
18 that took place, you say, at the moment,
19 November 1996 -- and the reason -- again, I am sorry to
20 preamble, since you are worried about this -- when
21 we get to the Security Service witnesses next week, we
22 are going to hear very different versions from them in
23 2005 as to how this all came about; do you follow?
24 A. How what all came about?
25 Q. The proposal, what happened to it and so forth and
1 records. Now they do not all give a consistent account
2 about this. It is not just minor details; very
3 different. That is why I want to know whether there was
4 any investigation nearer the time that established, for
5 example, what the proposal really was. We have what A
6 says it was, but we want to know actually what it said
7 because there is an issue over this. That is why I am
8 asking you about an investigation nearer the time. Do
9 you follow, Sir Richard?
10 A. I do, and there was an investigation carried out at the
11 time by one of my senior officers.
12 Q. Right. Would it be possible -- I do not want to know
13 the name, but a senior officer investigated it at the
14 time; do you remember his name? I do not want it in
15 public. Do you remember his name?
16 A. I probably remember his name, yes.
17 MR MANSFIELD: Would you be kind enough to write it down so
18 that the learned Coroner has the name that you probably
20 LORD JUSTICE SCOTT BAKER: Why is this necessary?
21 MR MANSFIELD: Sir, I have made it very clear. I am going
22 to ask for disclosure of that report. It bears upon
23 what is going to happen next week and the questions that
24 I am going to ask now on this central allegation of
25 a similar proposal to what actually happened in Paris.
1 So since much was made with Richard Tomlinson about
2 whether the details that he put in book finally were
3 actually part of the proposal -- much was made of that,
4 so I want to know, if I may, what was done at the
5 time -- and there are many more questions, I am afraid,
6 on this part of it -- and for the first time we are told
7 that there was as investigation. I want to know why
8 it was not in his statement that there was one, but
9 I have not even got to that.
10 So I need to know or for you, sir, to know, in case
11 it is said later, "I did not mean him, I meant someone
12 else", who was it who carried out the investigation and
13 what the date of the investigation was and what it
14 discovered or did not discover.
15 LORD JUSTICE SCOTT BAKER: I do not think what interests you
16 is the name of the person conducting the investigation.
17 MR MANSFIELD: No.
18 LORD JUSTICE SCOTT BAKER: What interests you is the product
19 of the investigation.
20 MR MANSFIELD: It is, yes, it is.
21 LORD JUSTICE SCOTT BAKER: So the first stage in this is to
22 ascertain whether, in fact, there is any document that
23 exists. Whether it is disclosable or not is an entirely
24 different matter.
25 MR MANSFIELD: It is to you, but perhaps not to me.
1 Now, Sir Richard, when you started compiling this
2 statement, did you ask for that investigation report
3 before you started speculating, as you do in here, about
4 what happened?
5 A. I did not ask to read a copy of the report.
6 Q. Why not?
7 A. I did not think, in relation -- I think I have made it
8 quite clear why not, because I do not think this
9 incident actually has any relevance to the death of the
10 Princess of Wales in Paris.
11 Q. That is not for you to decide, Sir Richard. Is that how
12 you have approached this matter? It is not for you to
13 decide what is relevant. In fact, it is in the first
14 place for the learned Coroner, if I may say so, and then
15 eventually for the jury, who sit right opposite you
16 here. Now --
17 A. But this is my statement.
18 Q. Yes. We don't have to, if I may say so, necessarily
19 just accept your statement as it stands. We are
20 entitled -- you will appreciate that -- to ask you
21 questions, are we not?
22 A. You certainly are, yes.
23 Q. You must have been warned before you came here today
24 that you might be asked questions, amongst others, by
25 me. You must have been warned that.
1 LORD JUSTICE SCOTT BAKER: Well, if he was not warned,
2 it was pretty obvious.
3 MR MANSFIELD: Therefore you are not suggesting, are you,
4 that you are just not going to answer the questions or
5 they are not relevant so therefore you won't answer
6 them? You are not suggesting that, are you?
7 A. I will answer the questions to the best of my ability
8 for the purposes of this inquest.
9 Q. The question that then follows is: you did not ask for
10 this report and I do ask for disclosure of this report
11 to at least in the first instance yourself, sir, if it
12 may be done, and then, if it is relevant, suitably
13 redacted for the rest of it.
14 One of the most obvious things, of course, at that
15 stage, whenever it happened, is to go to A and interview
16 him and find out what on earth he thought he was doing
17 since Government policy suggests that only in
18 extraordinary circumstances like emergencies should
19 assassination even be considered. So was he
21 A. I am sure he was interviewed.
22 Q. Because we don't have that either. I would ask, if
23 it is not included in the report, that we have
24 disclosure of what he was saying whenever it was that he
25 was originally interviewed.
1 Can I just ask you why does your statement to us not
2 indicate that there was an investigation by the security
3 services, either at the time -- because you could have
4 found that out -- or in 1996 when you say you first
5 discovered or may have first discovered? Why does
6 the statement say nothing?
7 A. Because I do not think in the context, as I have said,
8 of the statement that it was necessary or relevant to
9 include that.
10 Q. So you decide --
11 A. That was my judgment.
12 Q. That is why I suggest to you that I have to ask detailed
13 questions because somebody has gone through this
14 statement, not just you, very carefully deciding what is
15 relevant to put in and what is not relevant, is that
16 right? That is the exercise that has been carried out?
17 A. Can I just comment that it is my statement?
18 Q. Yes.
19 A. You are making it sound as though it is -- I do take
20 ownership of this statement.
21 Q. I appreciate you do, but you have been very clear about
22 the fact that it has been compiled over a number of
23 month with the assistance of at least a legal team --
24 LORD JUSTICE SCOTT BAKER: Mr Mansfield, we are in very new
25 territory here. I do not think that it has ever
1 previously occurred that a former head of the security
2 services has given evidence in an inquest in this way.
3 MR MANSFIELD: Yes, I accept that. It is very novel, but
4 what is not novel is the ability to give a full and
5 truthful account of what has happened in relation to
6 topics about which the witness is asked.
7 So all I am asking you is why, when you give this --
8 as you begin it -- the jury don't have it -- alleged
10 "I cannot recall precisely when I first became
11 aware ..."
12 Well, in fact, with a little bit of help from your
13 friends, as they say, you could have easily established
14 through the report, unless it had been shredded, when it
15 was that you first became aware. What I am really
16 asking you is why did you not do that.
17 A. You asked me when I first became aware. The reason
18 it is phrased like that is, as I think I have made quite
19 clear, that I may have had memory and knowledge of this
20 which predated the appearance of Tomlinson's book. So
21 if you want an explanation for that specific phrase,
22 that is why it is phrased like that.
23 Q. No, I want an explanation as to why, firstly, you did
24 not ask for the report and you did not make clear in the
25 statement that you had had a report done, and that, in
1 fact, you were capable of giving a much more precise
2 date if you looked at the report.
3 LORD JUSTICE SCOTT BAKER: He has already answered that
4 question. He did not think that they were relevant in
5 the context of the inquests with the information that he
6 had at the time.
7 MR MANSFIELD: Right. I just want to pursue it a little
8 further. A would have been interviewed about what on
9 earth he thought he was doing and, of course, what would
10 have then happened, is this right -- and I await
11 obviously the report to see if what I am suggesting is
12 correct -- there would have to be an interview of others
13 who may or may not have known about the proposal,
14 wouldn't there? There would have to be interviews of
15 all of those people?
16 A. There certainly would have been more than one.
17 Q. Have you read the statements that they have all made
18 much more recently, in 2005? Have you read what they
20 A. I have read those statements, yes.
21 Q. Have you noticed that there is a very serious conflict
22 about who actually saw what and who ordered the
23 shredding, isn't there?
24 A. There are discrepancies in the statements, yes.
25 Q. About who saw it, about who ordered it to be shredded
1 and so forth, isn't there?
2 A. Yes, that is true.
3 Q. Because those are the kind of discrepancies which
4 perhaps, in the early stages, if it was investigated
5 properly at the start, we might have more light shed
6 upon who really did what when. Do you follow
7 the reasoning here?
8 A. I follow your reasoning.
9 Q. Now, leaving aside individuals who may be named in
10 the report in terms of being interviewed, there is
11 a document analysis that can be done.
12 First of all, the document was on a white minute
13 sheet with a board attached, wasn't it, allegedly?
14 A. That is what I think one of statements says, yes.
15 Q. The person who actually had the job logistically of
16 putting it into existence says that.
17 The reason, you see, Sir Richard, I am asking you
18 these questions is you have spent all morning indicating
19 how tight everything is, how nothing is done without X,
20 Y and Z, and that is why I want to ask you these
22 Once a white document comes into existence, if I may
23 put it that way, it is an accountable document, isn't
25 A. I will qualify that. One it has started to circulate,
1 it is an accountable document.
2 Q. No. Once it has been put into existence, typed up as
3 a white document with a tally card, it is an accountable
4 document from that moment, isn't it?
5 A. Well, I would actually say -- I am not going to go into
6 the detail of how SIS paper was handled at that time.
7 Q. But do you know --
8 A. Do I know how it was handled?
9 Q. Yes.
10 A. I obviously have some knowledge, and I would say that
11 once the document started to circulate beyond
12 the section and the tally system was in operation, it
13 becomes an official document.
14 Q. You see, we have a statement from someone else, called
15 X, who deals in some detail about how this is done.
16 I am suggesting to you that it is extremely important
17 because once it is a white document with a tally card,
18 it is accountable and, in extraordinary situations, it
19 might be shredded -- and I will come back to that -- but
20 this: first of all, a record would have to be kept about
21 who ordered the shredding, wouldn't there?
22 A. If the document was not officially in existence, there
23 would not have to be a record of who shredded it.
24 Q. Sorry?
25 A. I said if the document was not officially in existence,
1 there would not have to be a record of who shredded it.
2 Q. But if it was officially in existence, there would have
3 to be a record, correct?
4 A. If the document was an official circulating document --
5 I have made the distinction -- then any destruction
6 would be official, I mean officially recorded. But
7 I think it is clear what happened in this instance is
8 that a number and a tally was issued, the document never
9 left the originators, it was destroyed and the tally and
10 the numbers were re-allocated to other documents.
11 I think that seems to me reasonably clear.
12 Q. Is it? Well, we'll --
13 A. No, I think it is.
14 Q. I appreciate that you are very keen to assert that. But
15 actually, when a document once formally in existence is
16 circulated within a section, the card which has numbered
17 tallies on it attached to the back, each time a tally is
18 taken within the section, that has to be registered,
19 doesn't it?
20 A. When a document moves, the tallies register the move.
21 This is at that time.
22 Q. I suggest to you that, on the face of it, it has to have
23 moved for it to have been shredded. Somebody else knew
24 that it existed.
25 A. I think this is getting rather semantic because, in
1 fact, if you have two or three people sitting in the
2 same room, which is probably what we are talking about
3 in this instance, the document physically remained with
4 that small group of people.
5 Q. Is that what happened?
6 A. I am pretty sure, yes, that is what happened.
7 Q. That is not what the operatives say, is it? In fact,
8 one of the operatives, Mr A himself, said he held on to
9 his copy; did you know that? Did you know that?
10 A. I am not aware of that.
11 Q. No. But you agree, do you, that in fact once a formal
12 document is in existence and is accountable, if it
13 circulates even within a section, then each time
14 a member of the section removes a tally to say that they
15 have seen it, that movement has to be registered,
16 doesn't it?
17 A. The movement of the document is registered via
18 the tallies, yes.
19 Q. And of course, we know from A himself, if he has it
20 right, that this document was copied and sent to others.
21 Did you know that? That is what he says.
22 A. Well, I am not aware of that.
23 Q. That is what he says now. He says that he sent it to
24 the controller, known as E. Did you know that?
25 The controller of that section; the Eastern European
1 section. Did you know that?
2 A. My understanding is that he more likely went to talk to
3 him about it.
4 Q. How do you know that?
5 A. Well, I am referring to what I believe to be in
6 the statements.
7 Q. No. You see, what he claims now -- and that is why
8 I suggest the original report may become important about
9 what really happened here and what the proposal
10 originally contained -- is that he did not go to his
11 line management immediately because he was worried he
12 was not going to get -- or it would not be taken
13 seriously. But it had a distribution list, this tally
14 card, according to Richard Tomlinson, and one of the
15 people on the distribution list was the controller, and
16 he will say -- that is A -- that it was forwarded to
17 the controller. You did not know that, is that right?
18 A. We are getting here into very forensic detail about
19 the handling of a document down in this section, so
20 I cannot say definitely that I would have known that.
21 Q. The reason I am putting it to you, so that it is clear
22 you see, I want to suggest that if there were elements
23 of the security services who wanted to do something
24 without your knowledge, it is not difficult. It was not
25 difficult then, was it?
1 A. It would be very difficult to do. You used the words,
2 "to do something". I am not quite sure what you men by
3 that, but it would be very difficult to do something, if
4 not impossible, as I have described.
5 LORD JUSTICE SCOTT BAKER: But, Mr Mansfield, I thought
6 Mr Al Fayed's whole case, if I can put it that way, is
7 built on the fact that this was not something that was
8 done without the knowledge of those running MI6; this
9 was their scheme.
10 MR MANSFIELD: Yes, I appreciate.
11 May I make it very clear, Mr Fayed -- an observation
12 was made yesterday -- has certain beliefs which he has
13 made clear. He is plainly not a member of MI6 or,
14 certainly, the establishment either. He has certain
15 beliefs and I have never at any stage withdrawn any of
16 his beliefs but you will see I have focused very
17 carefully on elements of what he is suggesting that may
18 be true; in other words, for which there is,
19 forensically, evidence to support his beliefs.
20 May I make it perfectly clear that this jury and
21 you, sir, will not be just considering at the end of day
22 in an inquest of this kind whether the beliefs as
23 expressed by Mohamed Al Fayed are supported on every
24 front. There are other possibilities --
25 LORD JUSTICE SCOTT BAKER: I am well aware of that --
1 MR MANSFIELD: And this is one.
2 LORD JUSTICE SCOTT BAKER: The other possibilities have to
3 be supported by evidence. Well, everything has to be
4 supported by evidence.
5 MR MANSFIELD: I am only examining with this witness --
6 LORD JUSTICE SCOTT BAKER: But there is a limit to how far
7 you can dig on matters on which there is no evidence and
8 not even an assertion.
9 MR MANSFIELD: Well, there is evidence here, may I say
10 straightaway and I am not dealing with assertion.
11 We had a witness only this time last week who made
12 it very clear that his belief was that the materials he
13 had were relevant to what happened in Paris. Not only
14 did he have that belief, he had obviously his experience
15 and he went straight to the French authorities with it.
16 Therefore, on the back of that, I am entitled to ask
17 this witness, since there are obvious similarities, as
18 he drew last week, to ask this jury to consider through
19 you the possibility that elements within the security
20 services, which again is consistent with Mohamed
21 Al Fayed's belief, elements within the security services
22 in 1997 were responsible not just for drawing up a plan
23 but the possibility that in fact one or more of them may
24 have been responsible for what happened.
25 LORD JUSTICE SCOTT BAKER: So Prince Philip bypassed the top
1 people and went to somebody else?
2 MR MANSFIELD: No, sir. I do not have any evidence at
3 the moment and I have made it very clear that there are
4 all sorts of individuals that I have not accused of
6 LORD JUSTICE SCOTT BAKER: Well, I have not stopped you yet
7 but I am simply warning you that there is a limit to how
8 far one can go on these things.
9 MR MANSFIELD: Well, sir, I have kept it very contained so
10 far and I have been very focused; I have come straight
11 in on what the jury has heard.
12 LORD JUSTICE SCOTT BAKER: We have got to 1 o'clock so it
13 probably the right moment to break off but before
14 we break off, you are asking at the moment as
15 I understand it for two things. One is copies of all
16 previous draft statements, and I am not at the moment
17 persuaded as to why those are relevant, but we have not
18 heard any argument about that. The second is
19 the report, if there was one.
20 MR MANSFIELD: Yes. Sir, may I concentrate on the second?
21 LORD JUSTICE SCOTT BAKER: Yes.
22 MR MANSFIELD: It is the report of any investigation and any
23 records of interviews with potential witnesses coming
24 next week.
25 LORD JUSTICE SCOTT BAKER: Well, shall I raise this through
1 the right channels with Mr Tam over the adjournment? Is
2 that the right way to deal with it?
3 MR MANSFIELD: Yes. Thank you very much.
4 (1.00 pm)
5 (The short adjournment)