The Hutton Inquiry
To the Rt Hon Lord Falconer of Thoroton, the Secretary of State for Constitutional Affairs.
1. On 18 July 2003 I was requested by the Rt Hon Lord Falconer of Thoroton, the Secretary of State for Constitutional Affairs, to conduct an Inquiry into the death of Dr David Kelly. My terms of reference were:
"urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly."
Lord Falconer further requested me to deliver my report to him.
2. Mr Lee Hughes, a senior civil servant in the Department for Constitutional Affairs, was appointed as Secretary to the Inquiry. I requested Mr James Dingemans QC and Mr Peter Knox to act as counsel to the Inquiry, Clifford Chance LLP were appointed to act as solicitors to the Inquiry and the responsible partner, Mr Michael Smyth, assigned Mr Martin Smith, a senior associate, to act for them. The names of counsel and solicitors appearing for parties represented at the Inquiry are set out in appendix 1.
3. I held a preliminary sitting of the Inquiry on 1 August and I stated:
[1 August, page 1, line 16]
At the commencement of the Inquiry I wish to state the objectives which it should seek to achieve. First of all, my primary task is to investigate the circumstances surrounding the death and that will involve a detailed and careful examination of the relevant facts. Secondly, my terms of reference require me to conduct the investigation urgently, and that means that I must proceed with expedition, and I have no doubt that it is in the public interest that I should do so. Thirdly, I must ensure that the procedures at the Inquiry are fair to those who give evidence.
4. I also stated that the Inquiry would be held in two stages. The first stage would consist of calling witnesses to give evidence in chronological order as to the sequence of events insofar as that was possible. The witnesses would be examined by counsel to the Inquiry in a neutral way to elicit their knowledge and understanding of the facts and they would not be examined by counsel representing them or cross-examined by counsel representing other parties.
5. There would then be a period of adjournment after which the second stage of the Inquiry would commence. In the second stage I would ask persons, who had already given evidence and whose conduct might possibly be the subject of criticism in my report, to come back to be examined further by counsel to the Inquiry and, subject to my permission, by their own counsel and, subject also to my permission, to be cross-examined by counsel for other parties. I also stated that in the second stage I might call witnesses who had not been called in the first stage and against whom there might be no possible criticism.
6. The first stage of the Inquiry commenced on 11 August 2003 and concluded on 4 September 2003. The second stage of the Inquiry commenced on 15 September 2003 and concluded on 25 September 2003, save that the Inquiry sat on 13 October 2003 to hear further evidence from a witness who had been ill during the second stage.
7. During the period of adjournment between the first and second stages of the Inquiry I caused the solicitor to the Inquiry, Mr Martin Smith, to write to a number of witnesses informing them of possible criticisms of them arising from the evidence heard in the first stage and informing them that if they wished to dispute these possible criticisms they would have the opportunity to submit written representations and to make oral submissions at the second stage of the Inquiry. They were also informed that they would have the opportunity, if they wished, to give further evidence relating to those possible criticisms on examination by their own counsel and that they might be subject to cross-examination by legal representatives for other interested parties and counsel to the Inquiry. They were also informed that if, as a result of hearing further evidence in the second stage of the Inquiry, I was minded to make other possible criticisms which might affect them, they would be informed in the course of the second stage in order to allow them to deal with those new matters.
8. In the course of the second stage a number of witnesses were examined by their own counsel, and some of them were cross-examined by counsel for other interested persons or bodies and by counsel to the Inquiry. At the commencement of the second stage counsel to the Inquiry made an opening statement and at the close of the second stage counsel for the interested parties and counsel to the Inquiry made closing statements.
9. My terms of reference were "urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly". In my opinion these terms of reference required me to consider the circumstances preceding and leading up to the death of Dr Kelly insofar as (1) they might have had an effect on his state of mind and influenced his actions preceding and leading up to his death or (2) they might have influenced the actions of others which affected Dr Kelly preceding and leading up to his death. There has been a great deal of controversy and debate whether the intelligence in relation to weapons of mass destruction set out in the dossier published by the Government on 24 September 2002 was of sufficient strength and reliability to justify the Government in deciding that Iraq under Saddam Hussein posed such a threat to the safety and interests of the United Kingdom that military action should be taken against that country. This controversy and debate has continued because of the failure, up to the time of writing this report, to find weapons of mass destruction in Iraq. I gave careful consideration to the view expressed by a number of public figures and commentators that my terms of reference required or, at least, entitled me to consider this issue. However I concluded that a question of such wide import, which would involve the consideration of a wide range of evidence, is not one which falls within my terms of reference. The major controversy which arose following Mr Andrew Gilligan's broadcasts on the BBC Today programme on 29 May 2003 and which closely involved Dr Kelly arose from the allegations in the broadcasts (1) that the Government probably knew, before it decided to put it in its dossier of 24 September 2002, that the statement was wrong that the Iraqi military were able to deploy weapons of mass destruction within 45 minutes of a decision to do so and (2) that 10 Downing Street ordered the dossier to be sexed up. It was these allegations attacking the integrity of the Government which drew Dr Kelly into the controversy about the broadcasts and which I consider I should examine under my terms of reference. The issue whether, if approved by the Joint Intelligence Committee and believed by the Government to be reliable, the intelligence contained in the dossier was nevertheless unreliable is a separate issue which I consider does not fall within my terms of reference. There has also been debate as to the definition of the term "weapons of mass destruction" (WMD) and as to the distinction between battlefield WMD and strategic WMD. Mr Gilligan's broadcasts on 29 May related to the claim in the dossier that chemical and biological weapons were deployable within 45 minutes and did not refer to the distinction between battlefield weapons, such as artillery and rockets, and strategic weapons, such as long range missiles, and a consideration of this issue does not fall within my terms of reference relating to the circumstances surrounding the death of Dr Kelly.
10. I further consider that one of my primary duties in carrying out my terms of reference is, after hearing the evidence of many witnesses, to state in considerable detail the relevant facts surrounding Dr Kelly's death and also, insofar as I can determine them, the motives and reasons operating in the minds of those who took various decisions and carried out various actions which affected Dr Kelly.
11. In order to enable the public to be as fully informed as possible I have also decided, rather than set out a summary of the evidence, to set out in this report many parts of the transcript of the evidence so that the public can read what the witnesses said and can understand why I have come to the conclusions which I state.
12. Whilst I stated at the preliminary sitting on 1 August that I did not sit to decide between conflicting cases advanced by interested parties who had opposing arguments to present, it has been inevitable in the course of the Inquiry that attention has focussed on the decisions and conduct of individual persons, and therefore I think it is right that I should express my opinion on the propriety or reasonableness of some of those decisions and actions.
13. I propose to commence by stating the facts which I consider have been established by the evidence which I have heard and by the documents put in evidence and many of these facts have not been in any real dispute. After stating the facts, I propose to turn to consider the issues which arise from those facts and to express my opinion in relation to them.
14. At the outset I state, for reasons which I will set out in greater detail in a later part of this report, that I am satisfied that Dr Kelly took his own life by cutting his left wrist and that his death was hastened by his taking Coproxamol tablets. I am further satisfied that there was no involvement by a third person in Dr Kelly's death.
15. I also consider it to be important to state in this early part of the report that I am satisfied that none of the persons whose decisions and actions I later describe ever contemplated that Dr Kelly might take his own life. I am further satisfied that none of those persons was at fault in not contemplating that Dr Kelly might take his own life. Whatever pressures and strains Dr Kelly was subjected to by the decisions and actions taken in the weeks before his death, I am satisfied that no one realised or should have realised that those pressures and strains might drive him to take his own life or contribute to his decision to do so.
16. The facts which I consider have been established by the evidence given in the course of the Inquiry are the following and I shall return to discuss some of these facts in greater detail in later parts of this report.
17. Dr Kelly was a biologist by training, who held degrees from a number of universities and he was a very highly qualified specialist in the field of biology. In 1984 he joined the Ministry of Defence (MoD) and was appointed to head the microbiology division at the chemical and biological defence establishment at Porton Down in Wiltshire. The nature of Dr Kelly's employment within the Civil Service later became somewhat complex. In April 1995 the Defence Evaluation and Research Agency (DERA) was established as an agency of the MoD and Dr Kelly's personnel management and employment formally passed from the MoD to DERA. In 1996 Dr Kelly was appointed on secondment to the Proliferation and Arms Control Secretariat (PACS) within the MoD and he worked as an adviser to PACS and to the Non-Proliferation Department of the Foreign and Commonwealth Office (FCO) on Iraq's chemical and biological weapons capabilities and on the work of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC). Dr Kelly was also responsible for providing advice to the Defence Intelligence Staff (DIS) of the MoD and to the Secret Intelligence Service (SIS) on Iraq. Dr Kelly's secondment was principally funded by the FCO for whom Dr Kelly carried out a substantial proportion of his work. From 1991 to 1998 Dr Kelly made 37 visits to Iraq in the course of his duties and took very few holidays. In 2001 the part of DERA which employed Dr Kelly became part of Defence Science and Technology Laboratory (DSTL) which is a Trading Fund of the MoD and DSTL became Dr Kelly's employer during the remainder of his secondment to the MoD which continued until his death.
18. In the mid 1990s Dr Kelly became dissatisfied with his salary and grading after DERA had created a new salary and grading structure and moved away from the general Civil Service structure. It appears that Dr Kelly had not been properly assimilated within the DERA salary scales and it appears that this may have happened because he was working abroad so much. Dr Kelly sought assistance on a number of occasions from the officials who were then his line managers. They intervened on his behalf and Dr Kelly was eventually regraded and advanced to a higher grade in February 2002. One of his line managers, Dr Shuttleworth described Dr Kelly as being concerned and frustrated but not bitter about his salary and grading.
19. In the early 1990s Dr Kelly became involved in the analysis of information about the biological and warfare programme of the Soviet Union and he went to Russia as a member of the Anglo American team visiting biotechnology facilities in different parts of Russia and played a leading role in that inspection. His work in Russia was most successful and he was highly respected by both the British and American members of the team.
20. In 1991 Dr Kelly became one of the chief weapons inspectors in Iraq on behalf of the United Nations Special Commission (UNSCOM) and from 1991 onwards was deeply involved in investigating the biological warfare programme of the Iraqi regime. These investigations resulted in 1995 in UNSCOM making a breakthrough and forcing the Iraqi regime to admit that it did have a biological warfare programme. During the 1990s Dr Kelly built up a high reputation as a weapons inspector, not only in the United Kingdom but internationally, and he was described in evidence by the journalist and author, Mr Tom Mangold, who knew him well, as the "inspector's inspector". The contribution made by Dr Kelly and the importance of his work was recognised by the Government and in 1996 he was appointed Companion of the Order of St Michael and St George (C.M.G.), the material part of the citation for the award stating:
he devised the scientific basis for the enhanced biological warfare defence programme and led strong research groups in many key areas. Following the Gulf War he led the first biological warfare inspection in Iraq and has spent most of his time since either in Iraq or at various sites in the former Soviet Union helping to shed light on past biological warfare related activities and assisting the UK/US RUS trilateral confidence building process. He has pursued this work tirelessly and with good humour despite the significant hardship, hostility and personal risk encountered during extended periods of service in both countries. In 1991 he was appointed adviser to the UN Special Commission (UNSCOM). His efforts in his specialist field have had consequences of international significance.
21. It appears that in May 2003 Dr Kelly was being considered for a further award (which might well have been a knighthood as he had already been awarded the C.M.G.) because a minute to Heads of Department in the FCO dated 9 May 2003 requested recommendations for the Diplomatic Service List and on 14 May an official wrote the following manuscript note on the minute:
How about David Kelly? (Iraq being topical).
22. On 24 September 2002 the Government published a dossier entitled:
WEAPONS OF MASS
THE ASSESSMENT OF THE BRITISH
This dossier contained a foreword by the Prime Minister:
The Executive Summary stated:
4. As well as the public evidence, however, significant additional information is available to the Government from secret intelligence sources, described in more detail in this paper. This intelligence cannot tell us about everything. However, it provides a fuller picture of Iraqi plans and capabilities. It shows that Saddam Hussein attaches great importance to possessing weapons of mass destruction which he regards as the basis for Iraq's regional power. It shows that he does not regard them only as weapons of last resort. He is ready to use them, including against his own population, and is determined to retain them, in breach of United Nations Security Council Resolutions (UNSCR).
5. Intelligence also shows that Iraq is preparing plans to conceal evidence of these weapons, including incriminating documents, from renewed inspections. And it confirms that despite sanctions and the policy of containment, Saddam has continued to make progress with his illicit weapons programmes.
6. As a result of the intelligence we judge that Iraq has:
Chapter 3 headed: "THE CURRENT POSITION: 1998-2002" stated:
1. This chapter sets out what we know of Saddam Hussein's chemical, biological, nuclear and ballistic missile programmes, drawing on all the available evidence. While it takes account of the results from UN inspections and other publicly available information, it also draws heavily on the latest intelligence about Iraqi efforts to develop their programmes and capabilities since 1998. The main conclusions are that:
5. Subsequently, intelligence has become available from reliable sources which complements and adds to previous intelligence and confirms the JIC assessment that Iraq has chemical and biological weapons. The intelligence also shows that the Iraqi leadership has been discussing a number of issues related to these weapons. This intelligence covers:
23. The rules governing the disclosure of information by civil servants in the MoD are set out as follows in Volume 7 of the MoD Personnel Manual:
Section 6: Disclosure of Information
6.1 Principles governing disclosure of information
This section describes the principles governing the public disclosure of information by serving or former members of the Department and sets out the rules that apply those principles to specific cases. The activities governed by this section are:
public lectures and speeches, interviews with or communications to the press or other media, film, radio and television appearances and statements to non-Governmental bodies, including MOD-sponsored conferences and seminars; ..
You must not make comment on, or make disclosure of:
classified or "in confidence" information;
relations between civil servants and Ministers, and advice given to Ministers;
politically controversial issues;
information that would conflict with MOD interests ..
anything that the MOD would regard as objectionable about individuals or organisations;
24. Paragraph 10 of Annex A to the Civil Service Code states:
Civil servants should not without authority disclose official information which has been communicated in confidence within the Administration, or received in confidence from others. Nothing in the Code should be taken as overriding existing statutory or common law obligations to keep confidential, or to disclose, certain information. They should not seek to frustrate or influence the policies, decisions or actions of Ministers, Assembly Secretaries or the National Assembly as a body by the unauthorised, improper or premature disclosure outside the Administration of any information to which they have had access as civil servants.
25. The DSTL procedure for conduct rules (which say on the title page that DSTL is part of the MoD) state:
8.4 Media activities
8.4.1 It is important to dispel any impression, however unfounded, that there is a conflict of interest between a particular activity and the responsibilities of an employee. There is no exhaustive list of activities that fall into this category, but it is in everyone (sic) interest for individuals to seek approval before indulging in any such activity and to ensure that records are kept.
8.4.2 Examples of activities that may conflict with the responsibilities of employees are:
26. One of Dr Kelly's roles in the course of his work was to speak to the media and institutions on Iraq issues and parts of his Performance and Development Assessment for the year April 2002 to March 2003 dated 12 April 2003 are as follows:
Statement of your roles and responsibilities:
Adviser to Proliferation Arms Control Secretariat, MOD and Non-proliferation Department, FCO on Iraq's chemical and biological weapons capabilities, UNMOVIC activities, and CWC/BWC issues. Adviser to DIS and SIS on Iraq.
Adviser to UNMOVIC on chemical biological weapons and inspector training.
Communicating Iraq issues to the media and Institutions
Annexed to Dr Kelly's Performance and Development Assessment for April 2002 to March 2003 was the following list of attendance at conferences and contacts with the media:
11th & 12th November 2002
Organization for the Prohibition of Chemical Weapons, The Hague, The Netherlands "Protection Network"
18th to 20th November 2002
International Institute for Strategic Studies, London: Conference "Iraq: Invasion or inspections" 31st January and 1st February 2003
Attributable and unattributable briefings plus interviews on Iraq, Russia, Weapons, Anthrax and Smallpox.
Television & Radio: Channel Four, Australian Broadcasting Company, Canadian Broadcasting Company, Tokyo Broadcasting Systems, CNN, CBS, ABC, Radio Netherlands, BBC four, BBC 24hours/World Service, BBC local radio (London, Wales).
News Media: Guardian, Daily Telegraph, The Times, New York Times, Washington Post, Los Angeles Times, Newsweek, Herald Tribune, and Wall Street Journal.
27. On 10 October 2002 Sir Kevin Tebbit, the Permanent Under-Secretary of State at the MoD, sent a minute to senior officials in the MoD in relation to contacts with the media:
CONTACTS WITH THE MEDIA
For a number of reasons the MOD and the Armed Forces are likely to find themselves the subject of more than usual media interest over the next six months. We ought to be as open as we can in explaining what we are doing and why. Equally, there is some information which must remain confidential if the Department and the Armed Forces are properly to perform their functions. It would be timely to restate the basic principles.
2. First, there are clear rules about seeking approval for media interviews and other contacts which must be followed in all cases. These are set out in DCI 313/99. In particular, proposals for contact by 2 Star officers/officials and above must be approved by Ministers. It is the responsibility of the officers/officials concerned to ensure that DGCC and his staff and/or the Corporate Communications and Media Ops staff embedded in TLB areas are informed of proposed media contacts so that appropriate guidance and advice can be provided. Unless there are very good reasons otherwise, communications staff should be present during interviews.
3. Second, submissions to Ministers and others must include a section on presentation covering both external and internal audiences, that is drawn up in conjunction with DGCC staffs. In particular, it must be explicitly acknowledged in the advice that goes forward that D News (or DGCC himself) has been consulted and is content.
4. Finally, a reminder of what CDS and I stated on 12 June about unauthorised leaks to the media. These are counterproductive and damaging to the reputation of the MOD in the eyes of the public and other Government Departments. They are also unprofessional and corrosive of trust and morale. In addition to being disciplinary offences, they could also lead to prosecution after criminal investigation.
5. I look to DMB members, TLB Holders and all senior line managers to enforce these guidelines.
28. The Intelligence and Security Committee (ISC), a Committee of Members of Parliament, in its Report of September 2003 described its functions as follows:
i. The Intelligence and Security Committee (ISC) is established under the Intelligence Services Act 1994 to examine the expenditure, administration and policy of the United Kingdom's three intelligence and security Agencies: the Security Service, the Secret Intelligence Service (SIS) and the Government Communications Headquarters (GCHQ). The Committee also takes evidence from the Security and Intelligence Co-ordinator, the Chairman of the Joint Intelligence Committee (JIC) and the Defence Intelligence Staff (DIS), as well as departments and other organisations that receive secret intelligence from the Agencies.
ii. The Prime Minister, in consultation with the leaders of the two main opposition parties, appoints the ISC members. Nominations for the membership of the Committee are put forward by the Government and Opposition whips, in a broadly similar way to the nomination of select committee members.
iii. The Committee reports directly to the Prime Minister and through him to Parliament by the publication of the Committee's Reports. The members are notified under the Official Secrets Act 1989 and, as such, operate within "the ring of secrecy". The Committee sees significant amounts of classified material in carrying out its duties and it takes evidence from Cabinet Ministers and senior officials - all of which is used to formulate its Reports.
iv. When laying a Report before Parliament, the Prime Minister, in consultation with the Committee, excludes any parts of the Report (indicated by the *** in the text) that would be prejudicial to the continuing discharge of the functions of the three intelligence and security Agencies. To date, no material has been excluded without the Committee's consent.
It appears from that Report that the ISC decided about the start of May 2003 to examine the intelligence relating to Iraq's Weapons of Mass Destruction (WMD) and paragraph 12 of its Report states:
On 8 May 2003, the Committee Chairman, the Rt. Hon. Ann Taylor, MP, wrote to the Chairman of the JIC to request all the JIC Assessments relating to Iraq and its WMD dating back to August 1990 and supporting intelligence.