Hearing Transcripts

1 Wednesday, 24th September 2003
2 (10.15 am)
3 LORD HUTTON: Good morning, ladies and gentlemen.
4 Yes, Mr Caldecott.
5 MR GAVYN DAVIES (called)
6 Examined by MR CALDECOTT
7 Q. Mr Davies, you have given evidence already to
8 the Inquiry. Just some short supplementary questions.
9 First of all, is there any higher authority in the
10 BBC than the Governors?
11 A. No. The Governors are the corporation of the BBC and
12 the powers of the BBC bestowed by the Charter are
13 bestowed on the Board of Governors. So it is the
14 supreme authority of the BBC. I as Chairman and my
15 colleagues as Governors accept, therefore, our proper
16 responsibility of the BBC in handling Mr Campbell's
17 complaints this summer. We were acting as a supervisory
18 authority, quite distinct, I think, from the activities
19 of the management.
20 Q. Do the Governors also have a distinct role in relation
21 to handling formal complaints?
22 A. They do. A formal complaint to the BBC would generally
23 go to the Programme Complaints Unit or to a divisional
24 head, such as Mr Sambrook, for example.
25 An appeal against a decision by the Programme

1
1 Complaints Unit would go to a particular body called the
2 Governors' Programme Complaints Committee. And that
3 would be the appellate body which would be constituted
4 as a sub-committee of the Governors and is really quite
5 distinct from what we were doing on the 6th, just when
6 we were acting as a supervisory authority of the BBC.
7 Q. I want to show you a very short extract from the letter
8 Mr Campbell wrote to all the Governors on 5th July.
9 BBC/6/11, please.
10 At the bottom of the letter, these two sentences:
11 "I note from press cuttings that the BBC views my
12 complaint as an attack upon the independence of the BBC.
13 I want to assure you that is not the case. I respect
14 the BBC's independence."
15 What was your reaction to that assertion by
16 Mr Campbell?
17 A. Well obviously I welcomed it. And the tone of this
18 letter, I thought, was reasoned and reasonable. But it
19 was very much in sharp contrast with what I felt
20 Mr Campbell had said in public, especially at the FAC
21 evidence that he had given, I think, on 25th June.
22 On that occasion I felt that he made some very
23 different points. Certainly the Governors took that
24 public attack as one which they had to take into account
25 at their meeting on 6th July.

2
1 So we welcomed this, but we did not think it removed
2 from the table the very serious attack which Mr Campbell
3 had mounted in public.
4 Q. Can I just ask you this: were you following the
5 Prime Minister's Official Spokesmen briefings in the run
6 up to your meeting on 6th July?
7 A. Yes, I was following them both before and immediately
8 after the meeting.
9 Q. I just want to ask you to comment on one, which is the
10 morning briefing on Thursday 26th June at BBC/5/102,
11 please. If we could scroll down just a little to the
12 middle. Do you see a paragraph starting there:
13 "Asked if Downing Street was considering..."?
14 A. Yes, I do.
15 Q. It is the first new paragraph on our screen.
16 A. Yes, I do.
17 Q. Four lines in this sentence:
18 "Asked if No. 10 had asked for a meeting with the
19 Chairman of the Board of Governors to initiate an
20 internal investigation at the BBC, the PMOS said that
21 what the BBC did internally was a matter for them."
22 A. Yes.
23 Q. Would you have any comment to make about that?
24 A. Well, I think on several occasions around that time the
25 Prime Minister's Official Spokesman really was making it

3
1 clear that they were not -- the Government was not
2 intending either to approach me or indeed, I think, the
3 Director General or the Governors with a formal
4 complaint; and later, on 7th July, I am not sure,
5 Mr Caldecott, whether you will show this document, but
6 the Prime Minister's Official Spokesman said his
7 "knowledge of the internal workings of the BBC's
8 complaints structure was a bit rusty", which suggests to
9 me that no serious consideration had been given to using
10 the complaints structure at any stage.
11 Q. Can I just ask you about a second passage in the
12 paragraph immediately beneath the one we have just
13 looked at? That is the paragraph starting "Questioned"
14 at the top of your screen. The second line in:
15 "We [that is the Government] were simply asking the
16 organisation to say whether they believed that their one
17 anonymous source outweighed the Prime Minister, the
18 Foreign Secretary, the Chairman of the Joint
19 Intelligence Committee, the Security and Intelligence
20 Coordinator, and the heads of the intelligence
21 agencies -- and that if so, whether they would accept
22 they were, in effect, calling all those people liars."
23 Did you in any way respond to that observation by
24 the Prime Minister's Official Spokesman?
25 A. I thought that was a very important observation. The

4
1 response that was in my mind at the time of the
2 Governors' statement after their 6th July meeting
3 I think was twofold.
4 First of all, we were indeed putting into the public
5 domain what we believed to be the views of an anonymous
6 source. But we had never claimed, to my knowledge, that
7 those views outweighed the views of the Prime Minister
8 and others; and we therefore added into the statement of
9 6th July this very firm statement that we were not
10 questioning the integrity of the Prime Minister. And
11 I think by not repeating or not stating that the BBC
12 stood behind the accuracy of the story, but we were
13 simply reporting a source, and by stating also that the
14 Prime Minister's integrity was not being questioned,
15 I felt that actually we had come pretty close to
16 fulfilling the terms of what the PMOS said in that
17 paragraph.
18 Q. Do you have any view on I think an observation made by
19 Mr Dyke that the BBC could itself have referred the
20 matter to the Programme Complaints Unit of its own
21 initiative?
22 A. I think Mr Dyke has said that -- he did not use these
23 words, but as a council of perfection it would have been
24 possible to have done that, to put the complaint to the
25 PCU. Actually, one of the Governors thought about that

5
1 too on 6th July.
2 That may have been a council of perfection. I think
3 it could have, indeed, had some disadvantages as well as
4 some advantages. And one of those, I think, is that
5 without the active cooperation of Mr Campbell in being
6 willing to bring evidence on the dossiers to such
7 a committee, I think it would have been quite difficult
8 for the PCU to really have handled the complaint.
9 I think -- and this would have applied probably to
10 the Broadcasting Standards Commission as well -- it
11 would have been satisfactory really only if Mr Campbell
12 had been willing to actively cooperate.
13 Q. Can I just ask you this: your meeting on 6th July; was
14 there anything unusual about the way in which it began?
15 A. Well, I took a decision that at a time of such perceived
16 pressure on the BBC, and at a time when people would
17 say, no doubt, that the Governors should act
18 independently from management, and they would be right
19 in thinking that, that we should start the meeting as
20 12 Governors -- in fact there were only 11 at the time,
21 so 11 Governors -- and that we should not have
22 management present and indeed we should not have the
23 Director General present. And I think that the
24 beginning of the Governors' meeting on the 6th July is
25 the only time in my experience in the last three years,

6
1 and for probably quite a long time before that as well,
2 where a significant meeting of the Governors has taken
3 place in the absence of the Director General.
4 The reason for that was that I did not want the
5 decisions of the Governors in the areas that we were
6 likely to cover to be affected by considerations of the
7 sensibilities of management. Of course, at the end of
8 the meeting, in a statement that I think has not -- some
9 parts of which have not been fully noted by some people
10 in the outside world, the Governors did suggest that
11 management had committed some failings in the previous
12 several weeks. This was by no means a blanket
13 endorsement of everything the management had done.
14 Despite the fact the Director General, in some cases,
15 did not want the Governors to put that on record.
16 Q. Can I ask you briefly to deal with a point arising on
17 your letter to Mr Hoon on 8th July at CAB/1/82? It is
18 really the first line of that letter:
19 "Thank you for today's letter, which I believe you
20 have now released to the press."
21 Can you please tell us your up-to-date understanding
22 as to the point you made there?
23 A. Yes, the belief I had that this letter had been released
24 to the press came about as follows: there was a phone
25 call to the Director of Communications at the BBC from

7
1 a senior BBC journalist, which I think came in at around
2 7 o'clock on the evening of -- is that the 8th July,
3 Mr Caldecott? I believe it is.
4 Q. Yes, it is.
5 A. The senior journalist said that he was going to a dinner
6 or a reception, I think, in Westminster and that the
7 terms of Mr Hoon's letter had been widely -- was being
8 widely discussed among the journalists going to the
9 meeting. And he knew, broadly, what the terms of the
10 letter were. So I assumed that the letter had been
11 released to the press. It may well be, Mr Caldecott,
12 that the letter itself was not released but I do believe
13 that the terms were known by the press, which is exactly
14 why we did this. I told our Director of Communications
15 that we must not release my letter until she was certain
16 that was the case.
17 Q. One last question: there has been a suggestion put
18 before that the Governors were too ready to defend
19 management. Can you just give us, very briefly, an
20 indication as to how Governors are appointed and the
21 kind of people they are?
22 A. The Governors are all appointed by Her Majesty the Queen
23 on the advice of the Prime Minister. It is a public
24 appointments procedure involving also the Secretary of
25 State for Culture, Media and Sport. Certainly, in my

8
1 experience, the people who emerge from this process are
2 highly experienced and independent-minded people. These
3 are not people doing the job for monetary reward. They
4 are not people doing the job, by the way, in order to
5 get further preferment in the public sector. They are
6 people like the former chair of the Joint Intelligence
7 Committee, a former head of a policy unit at No. 10,
8 a former Government Chief Whip for the Conservatives.
9 They have nothing to gain, quite frankly, by supporting
10 management for the sake of it. They support management
11 if they think management is operating in the public
12 interest, and not otherwise.
13 MR CALDECOTT: Thank you very much, Mr Davies.
14 Cross-examined by MR SUMPTION
15 Q. Mr Davies, before we get on to this particular case
16 I want to ask you about the function of the Governors in
17 general terms. Do you accept that if the Governors are
18 satisfied that a broadcast making serious allegations
19 against third parties was unfair to them it is entirely
20 proper for the Governors to intervene and require
21 a retraction?
22 A. Mr Sumption, if it is established that there is an
23 unfairness in a broadcast, it is well within the powers
24 of the Governors to do as you say. However, in general
25 the process by which this would be established would

9
1 involve a complaint about unfairness and on the whole it
2 would certainly go to the complaints procedure rather
3 than simply be a spontaneous act by the Governors. In
4 fact, I am not sure I can remember, certainly off-hand,
5 any occasion where the Governors have spontaneously
6 decided to decide that without the complaints procedure
7 being invoked.
8 Q. Yes, but if the Governors are involved, that is their
9 approach, is it not, that if it was unfair it is proper
10 for them to retract?
11 A. I think a complaint which is unfair and established to
12 be unfair by our complaints procedure or by a decision
13 of the Governors would have to be retracted,
14 Mr Sumption. We are a public service broadcaster. We
15 are not there to mislead the public in any sense. Our
16 only purpose in life is to not mislead the public but to
17 tell the truth to the public.
18 Q. Do you accept that is so whether the allegations are
19 made by the BBC or put into the public domain by the
20 BBC?
21 A. I think if the allegations are made by the BBC, as
22 I said, I think, in my previous set of evidence,
23 I believe that there is a higher requirement on the BBC
24 for certainty. If allegations are made by what we
25 believe to be a credible and reliable source, some of

10
1 the weight of those allegations is the weight of the
2 views of the source; and I think in some cases it can be
3 harder for the BBC to retract them unless the source
4 retracts. So I think it is slightly more complicated in
5 that case, Mr Sumption, but --
6 Q. If the Governors take the view that the reliance on the
7 source for the particular allegations that were
8 broadcast was unfair in all the circumstances, you would
9 expect them to direct a retraction, would you not?
10 A. Well, what I would expect to happen in those
11 circumstances is that I would expect the editorial
12 process to determine whether or not the BBC should
13 retract. If the editorial process, for some reason, did
14 not seem to be grappling properly with that then
15 certainly the Governors are the supreme authority of the
16 BBC and could take action. But there is custom and
17 practice here, Mr Sumption, which does require the
18 Governors to take account of the way the BBC has
19 operated for 80 years and not seek to duplicate or
20 override the decisions of the people that they have
21 appointed to run the editorial process, unless they have
22 good reason for doing that.
23 Q. Yes.
24 LORD HUTTON: May I just ask you on this point: you refer to
25 the distinction between reporting a source and the BBC

11
1 itself expressing a view. Now, is it correct that most
2 reports from the BBC depend upon sources? May I explain
3 it this way --
4 A. Not necessarily, my Lord, no. I do not think it is true
5 to say that most do. A lot do, certainly, my Lord, yes.
6 LORD HUTTON: But in the distinction you are drawing, are
7 you referring, on the one hand, to a case where a BBC
8 reporter himself makes an inquiry and then gives
9 a report based on his own experience -- for example,
10 Mr Gilligan, I think, referred to a case where he went
11 to interview someone about the sale of weapons, the sale
12 of which, I think, were banned, but the manager of the
13 company or some person in the company in fact agreed to
14 sell them to him.
15 I can understand there that that is a report
16 directly from the BBC; but apart from those cases, are
17 most or indeed virtually all of the reports delivered by
18 the BBC based on information coming from some third
19 party?
20 A. Certainly from a third party, my Lord, but I would not
21 necessarily say a source. Virtually all of news
22 actually or most of it is based on hard evidence.
23 I mean, it is based on film of speeches, like
24 George Bush's speech yesterday, and then interpretation
25 and debate surrounding what has been said.

12
1 LORD HUTTON: Yes.
2 A. So I think a case like this one actually is not the
3 majority of our news broadcasts. The majority of our
4 news broadcasts are based on evidence which is actually
5 fairly firm and in the public domain.
6 LORD HUTTON: I see.
7 A. Like a budget speech, for example.
8 LORD HUTTON: Yes.
9 A. An analogy with this would be if two weeks before the
10 budget a BBC financial correspondent ran a story saying:
11 the treasury economic service is unhappy with aspects of
12 the budget. Now that could well be based on a source.
13 If it was based on one source, my Lord, I think we would
14 have done it like we did on 29th May.
15 LORD HUTTON: I see.
16 A. If it was based on several sources, it may well be
17 reported as the BBC knows that. So I think it -- you
18 know, there is a higher bar of certainty to get into,
19 for example, a news bulletin. One thing I would like to
20 add -- I know I am going slightly off Mr Sumption's
21 question, but what I would like to add here is if it
22 appears on a news broadcast in the voice of a BBC
23 newscaster, then the bar of certainty is higher. And it
24 is interesting to me in this case that what was said on
25 the news broadcast at 6 o'clock was actually somewhat

13
1 different from what was said at 6.07.
2 LORD HUTTON: Thank you very much.
3 MR SUMPTION: Mr Davies, you mentioned, in answer to my
4 question, the point that the Governors do not want to
5 duplicate the judgment of the executives. No doubt in
6 investigating matters that come before them the
7 Governors will depend on the assistance of senior
8 executives to provide them with information, but you
9 will surely agree that their role is to form an
10 independent judgment and not simply to act as amplifiers
11 for views which the BBC staff have already formed?
12 A. I agree with that, Mr Sumption; and if you knew my
13 colleagues you would not think they were acting as
14 amplifiers to anybody.
15 Q. Let us look at what did happen in this case. You have
16 given evidence at phase 1 that it would not have been
17 possible for the BBC Governors to investigate the
18 accuracy of Mr Gilligan's report. Did you mean by that
19 that the Governors had no means of deciding whether the
20 dossier had actually been sexed up or not and, if so, by
21 whom?
22 A. I think I made it clear in my evidence that what I was
23 referring to there is what I have come to know as the
24 intrinsic accuracy of what the source said. I felt,
25 going into the meeting, and I still feel today even more

14
1 strongly having seen what has happened at this Inquiry,
2 that it was extremely complicated, difficult and, as
3 I said last time, actually literally impossible for the
4 Governors to get the information required to determine
5 the intrinsic accuracy of the source's allegations.
6 Therefore, we focused on whether the source was credible
7 and reliable, whether procedures had been followed and
8 whether the source had been accurately reported.
9 Q. Let us look at what they were in a position to look
10 into, because I think your last answer suggests that
11 there may be some common ground on that. The Governors
12 were in a position, were they not, to consider whether
13 the journalist had a proper support from his own source
14 for what he had broadcast. They could consider that,
15 could they not?
16 A. The Governors could and did consider that and asked
17 management about it.
18 Q. In your phase 1 evidence you said that the BBC had to be
19 absolutely clear -- these are your words -- that they
20 were reporting the words of the source. That is the
21 point that the Governors could have investigated, is it
22 not?
23 A. Mr Sumption, the word "investigated" is a strong word
24 here. The Governors questioned the management on that
25 aspect. It was not actually, at that stage, thought to

15
1 be the central issue facing the Governors, but they did
2 question management on that aspect.
3 Q. The Governors were in a position, were they not, to
4 consider whether the status of the source was such that
5 he could be expected to know the facts?
6 A. They were certainly in a position to determine that,
7 with the proviso that I do not think it would have been
8 right and proper, it would have been highly irregular
9 for them actually to have known who the source was.
10 Q. They could have been told what the status of the source
11 was without being told his name.
12 A. I do not believe that would have made any sense at all.
13 I think if they had been told what the status of the
14 source was in any precise terms they would effectively,
15 almost certainly, have been told who the source was. It
16 would have been quite easy, I think, as we have seen
17 recently, to have deduced who Dr Kelly was from an
18 accurate description of what he did.
19 Q. Are you suggesting that these eminent Governors, whose
20 qualifications you described a few minutes ago, were
21 people who although they embodied the BBC cannot be
22 trusted with that information?
23 A. I am certainly not suggesting my Governors cannot be
24 trusted. What I am saying is information given to
25 12 Governors with a lot of other people present is not

16
1 likely to remain secret. That is not because the people
2 cannot be trusted.
3 Q. It must be because somebody cannot be trusted.
4 A. No, I do not believe it is because anybody cannot be
5 trusted. I think that making the name of a source known
6 to such a wide circle of people or even the position of
7 the source, Mr Sumption, in real life, despite the fact
8 that you actively trust the people you are telling,
9 greatly increases the likelihood that the name of the
10 source will become public.
11 If I believed that information could be held secret
12 among such a large number of Governors and
13 non-Governors, I think I would be flying in the face of
14 a great deal of evidence of what happens in governments
15 and in other organisations. I do not believe that you
16 could have assumed that would be held secret by the most
17 trustworthy group of people in the world, and these are
18 trustworthy people.
19 Q. Are you suggesting it would not have been appropriate to
20 tell the Governors that the source was not a member of
21 the Intelligence Services?
22 A. I think it was more important to tell the Governors
23 whether the source was credible and reliable and to
24 accept the judgment of the Director General, who knew
25 not the name of the source but the identity of and the

17
1 type of work he did, and that -- excuse me
2 Mr Sumption -- and the Director of News, who knew the
3 same thing including, I think by that stage, the name of
4 the source. That would have been more important to me
5 than whether he was narrowly defined as a member of the
6 Security Services.
7 Q. I did not ask what would be important to you. On the
8 footing that the Governors have to make their own mind
9 up, are you saying it was inappropriate for them to be
10 told one fact of some importance, namely that this
11 source was not a member of the Intelligence Services?
12 A. Well, bear in mind here, Mr Sumption, that I myself did
13 not know who this source was or what position he held.
14 So it is not a question of what I thought the Governors
15 were -- what it was appropriate to tell others. It is
16 a question of what I thought it was appropriate for
17 myself and my fellow Governors to know.
18 All I would say to you is that none of these people,
19 who are not, I might say, shy in expressing their
20 opinion, felt they needed to know who the source was or
21 what the source did. They did feel they needed absolute
22 assurance that this person was in a position to make the
23 allegations which Mr Gilligan had reported.
24 Q. Did they think it was appropriate to form a view of
25 their own on that question or did they simply think that

18
1 it was appropriate to take the executives' view at face
2 value?
3 A. These people are not editors, and do not seek to
4 duplicate the editorial process. When they are told by
5 people that they respect and in multiple numbers,
6 several people that they respect, that the source is
7 credible and reliable, I think they are entitled and
8 should take that at face value, and they did.
9 Q. I see. So if you are investigating, if you are looking
10 into a complaint by someone else that the executives
11 have not formed an appropriate view on that, the BBC
12 Governors' function, on your evidence, is simply to take
13 over that view from the executives; is that right?
14 A. No, I do not believe that the Governors are in that
15 position at all. I think the Governors can make and do
16 frequently make a judgment about whether the executive
17 is likely to be speaking the truth, is likely to be in
18 possession of the knowledge that they are saying they
19 have. They are and were questioned on that. This was
20 not a question of simply saying: good morning, Mr Dyke,
21 may I please endorse your point of view on this source?
22 We asked, in some detail, whether our senior editors
23 were happy with the standing of the source; and I have
24 to tell you I am happy with the standing of the source
25 now I know a great deal more about Dr Kelly.

19
1 Q. The Governors asked whether the executives were happy
2 with the source, did they, not whether they themselves
3 should be?
4 A. I think I have just explained to you, Mr Sumption, that
5 it was rather difficult for the Governors to satisfy
6 themselves with that particular piece of judgment
7 without knowing the name of the source. I have been at
8 the BBC a very long -- not a very long time, but for
9 three years, but colleagues who have been at the BBC for
10 a very long time will tell you that the name of a source
11 has never been divulged to the Board of Governors. The
12 Board are a supervisory body, they are not the editorial
13 process of the BBC.
14 Q. You know perfectly well there is a great deal that the
15 Governors could have done with more information, even if
16 that information did not include the actual name of the
17 source, do you not?
18 A. I think it would have been very, very difficult for
19 sufficient information about Dr Kelly to be given to the
20 Board of Governors without that, in effect, divulging
21 the name of Dr Kelly to the Board.
22 Q. Would it be fair to say that both Mr Sambrook and
23 Mr Dyke felt very strongly about this issue?
24 A. I think you would have to ask them how strongly they
25 felt about the issue. I certainly felt strongly that

20
1 they should give to the Board the right degree of
2 comfort that the source was credible and reliable.
3 Q. I am going to press you on your view on whether they
4 felt strongly, because you spoke to them. Did they feel
5 strongly about this issue or not?
6 A. I think you would have to, if you do not mind,
7 Mr Sumption, tell me what aspect of the issue you are
8 talking about.
9 Q. Did they feel strongly that the BBC had acted entirely
10 appropriately both in making the original broadcasts and
11 in standing by those broadcasts?
12 A. I see, so we have moved off the source at this point,
13 have we?
14 Q. That is part of it. Just answer the question as asked.
15 A. They did feel strongly that the BBC had acted
16 appropriately in putting the views of this source into
17 the public domain.
18 Q. Were you aware on the morning of the Governors' meeting
19 that Mr Sambrook, in an interview published in
20 The Observer, had said that the BBC fully supported
21 Mr Gilligan. Were you aware of that?
22 A. I was aware of what the Prime Minister said in
23 The Observer; I am not sure I can recollect
24 Mr Sambrook's interview in The Observer.
25 Q. I see. That is a matter of record. We can look at it

21
1 in due course.
2 On 1st July Mr Sambrook had told the FAC that if the
3 FAC unanimously decided on concrete evidence that part
4 of the story was wrong, the BBC would retract.
5 A. Yes, he did.
6 Q. Now, you knew, did you not, that the FAC report was very
7 likely to have at least some opposition dissentions?
8 A. Are you asking me what I knew or what Mr Sambrook knew?
9 Q. I am asking you what you knew.
10 A. I did not know a vast amount about what the FAC was
11 likely to do until that weekend. Some information came
12 to us, I think through the press, about a split on the
13 FAC, but it came that weekend.
14 Q. Right. You knew, did you not --
15 A. I certainly knew there were opposition members on the
16 FAC, Mr Sumption.
17 Q. You knew also that the Government did not propose to put
18 drafts of the dossier or the oral evidence of the
19 Chairman of the Joint Intelligence Committee before the
20 FAC because they regarded that as a matter for the ISC?
21 A. I am not sure when that became public knowledge. It was
22 certainly the case that I was aware that the FAC had
23 asked for such drafts and I think I was aware,
24 Mr Sumption, I would not promise, that they were
25 complaining that they had not received such drafts.

22
1 Q. Yes. So the concession that the BBC would retract if
2 there was a unanimous report based on concrete evidence
3 was a fairly cheap concession to make, was it not?
4 A. No, I do not think it was a cheap concession to make.
5 I think there were two aspects to it.
6 One was, first, that this should not be a decision
7 determined by a party vote. So I mean, for example, if
8 the concession had been made -- sorry, if the decision
9 by the FAC had been made simply by Labour members
10 I think Mr Sambrook would have regarded that as rather
11 different from a decision that was made by a clearer
12 majority or a unanimous view of all members of the FAC.
13 Secondly, honestly, I just do not believe that it
14 was a cheap remark to ask for some concrete evidence on
15 which the FAC might have acted. I mean, I do believe
16 that in a circumstance like that concrete evidence was
17 appropriate, and it was appropriate for the BBC to ask
18 for concrete evidence.
19 Q. Can we have BBC/14/86, please? I want to turn to your
20 own personal position at the time you called the
21 Governors' meeting; and the document that has just come
22 up is an e-mail a bit before that, on 29th June,
23 addressed by you to the Governors. Do you see that?
24 A. I do.
25 Q. Now --

23
1 A. This date is what, Mr Sumption?
2 Q. 29th June.
3 A. Yes.
4 Q. After the first paragraph you say:
5 "Having said that, I think it is unknowable whether
6 the FAC will rule in the BBC's favour on the 45 minutes
7 claim in the September dossier. They might do so, but
8 it is also possible that they will say that the truth is
9 confused, since early drafts within the intelligence
10 community did not include the 45 minute claim, while
11 later ones did. Or they may conceivably just conclude
12 that the first draft which was seen by Mr Campbell did
13 indeed include the 45 minutes claim, as he has always
14 argued. The latter form of judgment would be
15 problematic, especially if Campbell then files a formal
16 complaint which goes for adjudication either to the
17 Governors or the BBC."
18 The reason why that would be problematic was,
19 presumably, that it would be problematic for the BBC if
20 the FAC appeared to endorse some of the complaints that
21 Mr Campbell had been voicing?
22 A. It would have been problematic for the BBC if they had
23 put into the public domain a story that was -- a report
24 that was untrue. That is clearly what I mean there.
25 Q. If you look down to the next paragraph of this e-mail,

24
1 you say:
2 "Some may therefore argue that there could be
3 advantage for the BBC in reaching a settlement with
4 No. 10 which both sides can live with, perhaps in
5 advance of, or shortly after, the publication of the FAC
6 report. However, I remain firmly of the view that, in
7 the big picture sense, it is absolutely critical for the
8 BBC to emerge from this row without being seen to buckle
9 in the face of Government pressure. If the BBC allows
10 itself to be bullied by this sort of behaviour from
11 No. 10, I believe that this could fatally damage the
12 trust which the public places in us. Furthermore,
13 I think we should remember that the main historic role
14 of the Governors has been to shield the BBC from this
15 sort of attempt to exert political muscle over our news
16 output. This, it seems to me, really is a moment for
17 the Governors to stand up and be counted. So I hope you
18 will agree that whatever emerges about the precise
19 details of the 45 minutes claim, we must not give any
20 ground which threatens the fundamental independence of
21 our news output, or suggests that the Governors have
22 buckled to Government pressure."
23 Why did you say that should be the line "whatever
24 details emerge about the precise details of the
25 45 minutes claim"?

25
1 A. What that means, Mr Sumption, is whatever emerges about
2 the right and wrongs of the story on the 45 minutes, and
3 whatever we would then have to do -- and I made it clear
4 in other e-mails that of course in those circumstances
5 we might have to pass judgment on our news division, but
6 whatever emerges on the 45 minutes claim, what we must
7 not do is give ground that threatens the fundamental
8 independence of our news output. So right or wrong on
9 the 45 minutes, we must not buckle under Government
10 pressure and give ground on the independence and
11 impartiality of our news output.
12 I have to say, Mr Sumption, I still agree with that
13 paragraph. We were faced with -- I will not repeat what
14 I have said before in any detail, but we were faced with
15 such an intemperate attack on our impartiality and our
16 integrity, Mr Sumption, that I think it was perfectly
17 reasonable for me to take the view that the public were
18 looking to the Governors to stand up for the
19 independence of the BBC, not to stand up for the
20 management but to stand up for the public interest.
21 Q. What you were saying was that whatever details might
22 emerge about the precise facts about the 45 minutes
23 claim, (1) there should be no compromise of the kind you
24 refer to at the beginning of that paragraph and (2) the
25 Governors must not give way but must be seen to support

26
1 the management.
2 A. Absolutely not saying that whatsoever. It does not say
3 anything about supporting the management in there. Nor
4 would I accept your interpretation of the first part of
5 that paragraph. The first part of that paragraph, I can
6 tell you, meant: we must not do a "behind the stairs"
7 deal with No. 10 Downing Street which the public will
8 see as a means of taking off the public agenda a matter
9 of legitimate public interest.
10 Q. You were so concerned about creating the outward
11 appearance of succumbing to political pressure that you
12 were urging the Governors that they should not give an
13 inch whatever a further investigation of the facts might
14 show. Is that not the position?
15 A. It is absolutely not the position, Mr Sumption. I do
16 not, at any stage in my life, ignore the facts. And the
17 most important thing, undoubtedly, is to tell the truth
18 to the public. But what I was concerned about here --
19 and I can tell you it was in the face of absolutely
20 unprecedented pressure from the Director of
21 Communications at 10 Downing Street, not an
22 insignificant figure in the Government at the time. In
23 the face of that pressure, I then believed and I now
24 believe, and I had the full support of all of the Board
25 in saying that it was a legitimate public duty of the

27
1 Board to say that that pressure was intolerable.
2 Q. Can we have BBC/14/96, please? Perhaps we could look at
3 the next page, because what I am interested in is your
4 e-mail to the Governors referring to the meeting which
5 you had just called for the 6th, which is set out at the
6 end of the e-mail from Dame Pauline Neville-Jones.
7 What you say here is you called a meeting, it is "an
8 unusually important moment in our careers as Governors".
9 You say:
10 "I do not think that we should seek to take a view
11 during this meeting on whether the Gilligan story was
12 accurate. This is not a question on which we need to
13 take responsibility. Instead, I think we should
14 concentrate on the following three questions."
15 Number 1 concerns bias in the previous reporting of
16 the war. I am not going into that.
17 "2. Mr Campbell has also alleged that the Today
18 Programme breached the BBC's producers' guidelines.
19 I believe that we should investigate this allegation,
20 which has been repeatedly made in public, without
21 waiting for an official complaint ...
22 "3. We should also consider whether to initiate
23 investigations into other matters of concern. These
24 could include the rules under which BBC journalists ...
25 [publish elsewhere]."

28
1 Would you accept one of the purposes of that e-mail
2 was to discourage the Governors from investigating the
3 accuracy of Mr Gilligan's reports?
4 A. The accuracy of the reports in the sense of the one that
5 I just mentioned earlier, intrinsic accuracy.
6 Q. In any sense, they were not going to be in a position,
7 without the information, even to investigate the
8 question whether the report was properly supported by
9 the source, were they?
10 A. Well, if you would not mind scrolling back to the very
11 top, you will see what Pauline wrote at the very top.
12 She writes:
13 "On Gavyn's first point I do think we need to be
14 clear by what we mean about the 'accuracy' of the
15 'Gilligan story'. Gilligan reported a source as having
16 claimed that the dossier was sexed up. We do not need
17 to judge the accuracy of the source's claim and we
18 appear to have assurances from the Head of News that the
19 source, though uncorroborated, was considered to be both
20 reliable and in a position to know that it was right to
21 rely on it. So far, so good."
22 So Pauline clearly understood the distinction
23 between the accuracy of Mr Gilligan's report and the
24 intrinsic accuracy of the truth of the allegations that
25 the source was making, and so did all the other

29
1 Governors. Bear in mind, Mr Sumption, that this e-mail
2 came several days after other e-mails which made that
3 very clear to the Governors.
4 Q. I understand the difference you make between the two
5 forms of accuracy. But your position was that the
6 Governors were not going to be investigating either of
7 them, was it not?
8 A. No.
9 Q. Well, were you aware, at the time of the meeting, that
10 Mr Sambrook had not examined Mr Gilligan's notes at the
11 time of writing his letter on 27th June?
12 A. I was aware of that. I also knew he had written the
13 letter in the presence of Mr Gilligan for a large part
14 of his writing.
15 Q. Were you aware he had examined them since writing that
16 letter?
17 A. I was aware he had examined them before the Governors'
18 meeting.
19 Q. Were you aware the notes did not support the most
20 serious of the allegations, namely Mr Gilligan's source
21 had accused the Government of putting material into the
22 dossier knowing it was probably wrong?
23 A. None of the Governors were aware that the notes did not
24 substantiate that, and nor did, I think -- was
25 Mr Sambrook aware of that. He had looked at the notes

30
1 and he had not, I think, picked up -- I believe he said
2 this to the Inquiry -- that parts of the 6.07 broadcast
3 were not repeated in the notes formally. However, he
4 had asked the journalist, Mr Gilligan, whether or not he
5 fully stood by the reports and the answer was, "Yes,
6 both factually and in terms of interpretation", and that
7 is what he told us.
8 Q. So Mr Sambrook had looked at the notes but had not
9 picked up the fact that the most serious of the
10 allegations was not reflected in the note; that is your
11 evidence, as I understand it, indeed it is
12 Mr Sambrook's.
13 A. I think it was not repeated verbatim in the notes.
14 I think Mr Sambrook had not noted that it was not
15 repeated verbatim in the notes. I believe Mr Sambrook
16 told the Inquiry that.
17 Q. The notes were not, of course, put before the Governors
18 even in redacted form, were they?
19 A. No, they were not.
20 Q. Were you aware that since Mr Gilligan's original
21 broadcast, statements had been made both by Mr Gilligan
22 and himself that the source was in the Intelligence
23 Services, but that by 6th July Mr Sambrook knew that
24 that was not so?
25 A. No, I was not aware that -- this intelligence source

31
1 point, Mr Sumption, and the difference between
2 intelligence sources and Intelligence Service sources,
3 had not come across my radar screen in any detail by the
4 time of the Governors' meeting.
5 Q. Do you not think it should have come across somebody's
6 radar screen if the Governors were going to be properly
7 informed about this?
8 A. It did come across somebody's radar screen. Both the
9 Director of News and I should imagine the Director
10 General, who broadly knew who the source was, would have
11 thought about it in some detail.
12 I think what Mr Sambrook said to the Inquiry was
13 that when he described the source as an Intelligence
14 Service source on his Today Programme interview, he
15 subsequently realised that that was a mistake but that
16 he did not feel that he could correct that mistake
17 without pointing further fingers at the source. He did
18 not mention any of that to the Governors.
19 Q. He did not, did he? So the Governors did not know that
20 a part of what had been said about the status of the
21 source on the BBC was known to the Director of News to
22 be wrong; and they had no report on the extent to which
23 Mr Gilligan's notes supported what he had broadcast.
24 Those two points are factually correct, are they not?
25 A. The Governors did not know anything about the source

32
1 other than the credibility and reliability of the source
2 as attested by several editors.
3 Q. In other words, the answer to my question is: no, they
4 did not know either of those two facts and nobody told
5 them.
6 A. In terms of the notes that Mr Gilligan gave -- kept of
7 his meeting with Dr Kelly, the Governors were told that
8 those notes substantiated the broadcast and, more to the
9 point, that Mr Gilligan was standing fully behind his
10 broadcast.
11 Now, I do want to say a word about notes here,
12 because these notes have adopted an extraordinarily
13 large part of the discussions that have been had since.
14 Most journalists broadcast material based, to a large
15 extent, on memory as well as notes; and most journalists
16 do not make verbatim or anywhere near verbatim notes of
17 their discussions. One of the reasons that is the
18 case -- and I can tell you this because I have worked,
19 in my career, for a lengthy period of time as a part
20 time journalist -- is most journalists think that it
21 puts off the person they are talking to if they either
22 bring out a tape recorder or a notepad. Therefore it is
23 very customary, Mr Sumption, for the journalist's memory
24 to be every bit as important as the journalist's notes.
25 Q. We know that Mr Gilligan claims that he did, in fact,

33
1 take notes during his meeting with Dr Kelly. So
2 whatever the general position may be, that does not seem
3 to be a relevant consideration in this case.
4 A. It does because he has always made it clear that this
5 was not a verbatim set of notes.
6 Q. Let me take you up on what you said a moment ago, that
7 the Governors were told that Mr Gilligan's notes
8 supported the broadcast. As I understand what you said
9 slightly earlier than that, they were told that even
10 though Mr Sambrook had not examined the notes carefully
11 enough to pick up the point that the 6.07 allegations
12 were not reflected there.
13 A. As Mr Sambrook correctly told you, at the time the main
14 interest in what the notes said appeared to be in two
15 things: one was whether the notes substantiated The Mail
16 on Sunday's article allegation by the source, that the
17 source had used the word "Campbell" or had attributed to
18 Alastair Campbell the transformation of the document.
19 That was one thing. The second was whether the notes
20 substantiated the "sexing up" or "making the document
21 sexier" phrase. And those were the two things that
22 I think Mr Sambrook said were particularly on his mind
23 when he inspected the notes; and the notes did
24 substantiate both those two things.
25 Q. Was nobody interested in the question whether the notes

34
1 substantiated the suggestion broadcast by Mr Gilligan
2 that the Government had put material into the dossier
3 knowing that it was probably wrong? Was no one
4 interested in that question?
5 A. The focus on the 6.07 broadcast, which has become very
6 intense recently in the Government's case, was not
7 actually reflected with the current degree of intensity
8 at the time. Mr Sambrook has said to this Inquiry that
9 it had not acquired the profile, in his thinking, that
10 it has since acquired in the Government's case. I would
11 argue, sir, that it had not acquired this profile in the
12 Government's complaints prior to about the latter part
13 of June either.
14 Q. I do not accept that, Mr Davies, but I am not going to
15 go through that point with you. That too is a matter of
16 record. But the fact is if Mr Sambrook had carefully
17 gone through the notes and compared them with the
18 transcript of what Mr Gilligan had said, it would have
19 been absolutely apparent to him what all BBC witnesses
20 have acknowledged so far in this Inquiry, namely that
21 Mr Gilligan had gone too far, would it not?
22 A. He would have noted that the precise words used in the
23 6.07 broadcast were not duplicated in the notes, and
24 I think he would then have asked Mr Gilligan why; and,
25 in a sense, I would say that actually was -- what

35
1 Mr Gilligan said was that the 6.07 was an interpretation
2 and not a direct quote from the source, he should not
3 have suggested it was a direct quote. It was an
4 interpretation from the source. And he was at that
5 stage standing by it.
6 One of the things I would say about the possibility
7 of a complaints process, and one reason why I think that
8 a full complaints process may have perhaps had problems
9 sorting this particular issue out, is that I think the
10 same thing may have happened. I think they may have
11 looked at the notes, seen that they did not duplicate
12 the words in the 6.07, asked Mr Gilligan why not and
13 Mr Gilligan may well have said: that was a valid
14 interpretation of what the source said to me. That is
15 why I think some further concrete evidence may have been
16 needed to sort this out.
17 Q. Are you saying that whatever Mr Gilligan said about
18 things that were not in his notes would have been taken
19 at face value by the Governors without further
20 investigation?
21 A. I did not say anything about the Governors, I was
22 talking about by the PCU.
23 Q. By the PCU then.
24 A. I do not think anything would have been taken at face
25 value at all. It would have been taken as evidence,

36
1 certainly.
2 Q. Who decided what information should be put before the
3 Governors at this meeting?
4 A. Alastair Campbell to some extent, because he sent us
5 a very large pack of information including all the
6 letters and correspondence. And the Secretary to the
7 BBC.
8 Q. Who is that?
9 A. Simon Milner.
10 Q. Did the Secretary of the BBC decide for himself what
11 information, apart from Mr Campbell's information,
12 should be put before the Governors? Were you consulted
13 on the point?
14 A. He decided himself. He told me what was going to be put
15 out.
16 Q. He did tell you what was going to be put out?
17 A. I am sure -- it was standard practice for him to tell
18 me, so yes, I am sure he did.
19 Q. You would have been satisfied that was the right
20 information to go before the Governors, would you?
21 A. I had not spotted anything else that should have gone.
22 Q. How were the Governors going to form an independent view
23 of the question whether Mr Gilligan had gone further
24 than his source and the question whether the source had
25 been accurately described without having the information

37
1 before them that was, in fact, in Mr Sambrook's head as
2 this meeting took place?
3 A. I have already explained to you, I think that the focus
4 on the notes is exaggerated to some degree. And what
5 I think the Governors wanted -- I speak for myself,
6 Mr Sumption; what I wanted, as Chairman, was I wanted
7 the considered judgment of the executives that we had
8 appointed to run the news division and the Director
9 General on whether the source was credible and reliable
10 and whether the source was accurately reported. And
11 short of seeking to duplicate their process in a way
12 that would have suggested that we did not trust them,
13 I am not sure what we could have done.
14 Let me explain something to you: the Board of the
15 BBC cannot operate, cannot operate, unless it is in a
16 situation in which it can rely on the good faith and
17 competence of its officers. I am absolutely certain
18 that it can.
19 If it sought to duplicate all of the actions of
20 management it would indeed become the management. There
21 is a gap between what the Board is and does and what the
22 management is and does.
23 Q. Mr Davies, I quite understand that the Governors' board
24 is a supervisory and, in some respects, an investigatory
25 body. But surely the problem here was that the

38
1 Governors did in fact duplicate what the executives had
2 done instead of forming a view of their own which, if
3 they had been properly informed, might have been very
4 different?
5 A. No, they did not duplicate what the executive had done.
6 They expressed the judgment, which I do not resile from
7 at all, that it was in the public interest to put the
8 words of the source into the public domain.
9 Q. They were put in a position where, for sheer want of
10 information on the point, they had no alternative but to
11 accept the views of the executives although those
12 executives had dug themselves firmly into a position, is
13 that not right?
14 A. The Governors had a great deal of information going into
15 the meeting and they had an important corroboration for
16 the Gilligan report, which continues to slip out of the
17 mind of the Government; and that is the Susan Watts
18 reports. I said in my first appearance before this
19 Inquiry that the Susan Watts report was not identical to
20 the Gilligan report. I actually studied both before
21 I went into the meeting and I knew they were not
22 identical, but I equally knew that the burden of what
23 Mr Gilligan had reported in his many broadcasts on the
24 subject at the end of May was a close match to the
25 burden of what Ms Watts reported on 2nd and 4th June.

39
1 And I do not think it should be forgotten that that is
2 the case, because certainly in my mind, and in several
3 other Governors' mind, maybe the whole of the Board of
4 Governors who received the information before they went
5 into the meeting, that was seen as an important
6 corroboration of the Gilligan story.
7 Q. Would you turn to BBC/6/107, please? This is part of
8 the official minute of the meeting in question. After
9 the executives are drawn it says, second paragraph from
10 the top of the page:
11 "Following an account from Mark Damazer about how
12 the '45 minutes claim' had been disputed by the
13 Government since the broadcast, and a discussion by
14 Governors about the accuracy of the report, Gavyn Davies
15 reminded the Board that it was not a matter for them."
16 So is the position that when the Governors did start
17 discussing the accuracy of the report you intervened to
18 stop them?
19 A. I think that is a very tendentious way of putting it.
20 I was reminding them, as I had said to them in the
21 e-mail on the Friday and had basically been agreed with
22 by all Governors, that the intrinsic accuracy of the
23 report, ie whether the source was telling,
24 fundamentally, the truth or not, as opposed to whether
25 we were accurately reporting him, was something that we

40
1 were not in a position to determine. I therefore felt
2 at this stage, and other Governors agreed with me, that
3 the discussion was interesting but going down a by-way
4 which we could not reach a conclusion on.
5 Q. I see. You could not, of course, without the
6 information.
7 A. No, we could not have got the information, Mr Sumption.
8 There was no way of obtaining the information.
9 Q. There was a discussion, we know, at the meeting about
10 whether proper notice should have been given to No. 10
11 in advance. There is just one aspect of that discussion
12 that I want to ask you about. Did Mr Dyke say, in the
13 course of the discussion, that if the Today Programme
14 had consulted No. 10 in advance and reported No. 10's
15 denial that would have weakened the impact of the
16 broadcast?
17 A. I do not remember Mr Dyke saying that. I think the
18 shorthand notes suggest Mr Dyke may have said something
19 to that effect, but the shorthand notes, to be honest,
20 are not cleared by the people concerned and may or may
21 not totally accurately grasp all the words, reflect all
22 the words they used. I do not remember Mr Dyke saying
23 that.
24 Q. They are at least as likely to record exactly what is
25 said as the smooth minute produced afterwards, are they

41
1 not?
2 A. Not necessarily, because the minute, I do not think you
3 will find it is very smooth, that was produced
4 afterwards at least has the agreement of the people that
5 they broadly did say what is shown in the minute. As
6 you all know, with Cabinet minutes, with any form of
7 public sector authority minutes, that is the standard
8 way of doing it to make sure that the shorthand note
9 taker has correctly picked up what was actually said at
10 the meeting.
11 Q. Was it the Governors' view that notice should have been
12 given to No. 10 in advance?
13 A. It was not a unanimous view.
14 Q. Was it the majority view?
15 A. It was the majority view, although when we described it
16 in the statement we said "could".
17 Q. Yes, you watered it down in the statement because you
18 did not wish to be seen to let down the executives.
19 That was the reason for that, was it not?
20 A. I have never heard such nonsense. We watered it down in
21 the statement because one of our most senior and most
22 respected Governors thought it was actually actively
23 wrong to give prior notification to No. 10, and in order
24 to ensure that unanimity was maintained among the
25 Governors, not among the executive, among the Governors,

42
1 I put the word "could" instead of "should".
2 Q. Did a number of the Governors express misgivings about
3 the propriety of Mr Gilligan writing his article in the
4 Mail on Sunday under the byline of a BBC correspondent?
5 A. There was a good deal of concern about that, yes.
6 Q. Was their conclusion on that watered down in the press
7 release as well?
8 A. No, because basically what we decided -- there were
9 several Governors who were very concerned about that and
10 who felt that the BBC should move, pretty rapidly, to
11 stop journalists on the BBC writing anywhere for
12 newspapers, outside newspapers. The Director of News
13 said, "Look, this is a bit more complicated than you may
14 think. We have freelance people, you know. It may be
15 difficult to control them. We also have issues where
16 some of our journalists are allowed to do this under
17 contract and we have to think about this in some
18 detail."
19 So we said to the executive: go away, form a view,
20 come back to us. And in fact the paper is under
21 preparation; I think we will probably discuss this at
22 the Governors' meeting in the next couple of days.
23 Q. Mr Davies, what you said is that you thought that people
24 were concerned about The Mail on Sunday article.
25 "Mr Gilligan", you said, "got us into trouble with The

43
1 Mail on Sunday". And Mr Dyke's response to that,
2 according to the shorthand note is, "If you say that
3 tonight, you are disowning Andrew Gilligan".
4 A. We did say it.
5 Q. Yes. What you did was to water down the point by simply
6 saying the Governors would look into the matter, because
7 Mr Dyke was concerned that you should say absolutely
8 nothing that would seem to be criticising Mr Gilligan.
9 A. We did say it.
10 Q. What do you say you say?
11 A. We did say it. There was no watering down. We said we
12 asked the executive to conduct an investigation. If we
13 had taken a decision on the night, Mr Sumption, you
14 would be standing here saying I took a knee jerk
15 decision that was too rapid.
16 Q. Could we look at BBC/6/111, please? Can we take it,
17 from the second bullet point on this press release, that
18 the Governors were, in fact, under the impression that
19 this was a senior intelligence source and that was the
20 reason why they rejected the suggestion that there
21 should have been corroboration from some other source?
22 A. No, you cannot take it from that.
23 Q. That is what it says, is it not?
24 A. As I explained in my first round of evidence, the phrase
25 "senior intelligence sources", which we can talk about

44
1 more in a minute in terms of the meaning of it, it does
2 not say "an Intelligence Service source".
3 Q. Ah, that is the difference, is it?
4 A. I wish to make that absolutely clear to you here today.
5 It says "a senior intelligence source", which to my mind
6 is different. That phrase was drafted in late in the
7 process and was not picked up by me. I did not know who
8 the source was. I said to the Inquiry in my first
9 appearance that I regret if that led to anybody
10 misreading who the source was. I regret that. But it
11 certainly did not reflect, and I had gone into it in
12 some detail with the people who took the notes of the
13 meeting, it certainly does not reflect that the
14 Governors were either told that the person was in the
15 Intelligence Services or assumed it. They were simply
16 told that the source was credible, reliable, in
17 a position to know, had given reliable information in
18 the past. They were not told he was in the Intelligence
19 Services.
20 Q. Was it true, or not, that the reason why the Board
21 rejected the suggestion that there should have been
22 corroborative evidence was that that was impractical in
23 the case of a senior intelligence source?
24 A. The Board was not told that, no.
25 Q. Was it true that that was the reason why they rejected

45
1 the allegation?
2 A. Rejected what allegation?
3 Q. The allegation was that the producers' guidelines had
4 been broken because you should have had a corroborative
5 source. Now, what this second bullet point is saying is
6 that that complaint was rejected because it was not
7 practical to obtain corroboration for intelligence
8 sources.
9 A. Mr Sumption, the whole point of our decision was that
10 the producer guidelines had not been broken.
11 Q. Mr Davies, you have misunderstood my question.
12 A. That is how you started your question.
13 Q. I will put it once more. I will try to put it more
14 clearly.
15 One of the matters before the Governors was the
16 question whether the BBC should have obtained
17 corroborative material from another source. The second
18 bullet point in this press release says that that is not
19 invariably necessary and was not appropriate in this
20 case because the source was a senior intelligence
21 source. Do you agree that that was the Governors'
22 decision on that particular point?
23 A. No, I believe what the Governors -- the decision the
24 Governors took on this particular point was that stories
25 about intelligence were sensitive and unlikely to be

46
1 corroborated by many sources. It does not require the
2 source to be a senior intelligence source in the sense
3 that the source was actually a member of the
4 Intelligence Services, which is not what this says.
5 Q. So you do not accept that the second bullet point
6 actually gives a fair account of the Governors' own view
7 of how matters proceeded?
8 A. I believe it gives a fair account entirely, Mr Sumption.
9 I have conceded that the words "senior intelligence
10 sources", although in my mind acceptable knowing what
11 I now know, although in my mind acceptable, may have
12 been misunderstood by some readers of this. I have said
13 it was drafted in late, not by me or by anyone else on
14 the Board but by a member of our communications team,
15 and that it was not intended to mislead and that
16 I regret if it did mislead anybody.
17 MR SUMPTION: Thank you.
18 Cross-examined by MR DINGEMANS
19 Q. Mr Davies, the Governors as a supreme authority of the
20 BBC, they accept ultimate responsibility for the actions
21 of the BBC in this matter, do they not?
22 A. Mr Dingemans, we accept ultimate responsibility for the
23 BBC in everything that it does.
24 Q. And you also accept, do you not, proper responsibility
25 for the BBC's handling of Mr Campbell's complaints?

47
1 A. I think that follows.
2 Q. Can I just deal with the Governors' investigation of
3 this matter? Accepting the points you make, that you
4 could not go to the Chairman of the JIC and look at the
5 draft dossiers --
6 A. Yes.
7 Q. -- were there not a number of things that might have put
8 you on notice that a thorough investigation was needed?
9 Perhaps I can just try them out with you.
10 A. Hmm, hmm.
11 Q. First of all, the Governors had been told that this was
12 a story that was going to be "chatter in the air" rather
13 than the lead item on the Today broadcast. That either
14 suggests a stunning lack of insight into the story which
15 was proposed to be broadcast or the broadcast had gone
16 beyond that which had been originally proposed.
17 A. Well, this was debated, actually, at the meeting. In
18 one of the Governors -- I think this is minuted
19 accurately in the shorthand notes -- said that she
20 thought it was somewhat naive that the programme might
21 not have recognised the nature of the story they were
22 broadcasting. Other Governors felt that it is always
23 very difficult to say where stories are going to go and
24 how big the stories are, and did not share her view.
25 Q. The second aspect that might have put you on notice --

48
1 A. But we did think about that quite carefully,
2 Mr Dingemans.
3 Q. The second aspect was Susan Watts' story, which you say
4 you looked at carefully.
5 A. Yes.
6 Q. Which crucially omits the point that the Government had
7 at least by that stage identified as objectionable,
8 namely that the 45 minutes point was probably wrong.
9 A. It does omit that, but it does have, you know, really
10 quite significant phrases that are rather -- you know,
11 rather similar although not identical. That is why
12 I said that, to me, it corroborated the broad thrust.
13 It does say that Ms Watts -- Ms Watts' broadcast did
14 say that the idea that there was an imminent threat --
15 words to this effect, I am slightly paraphrasing, but it
16 is close -- was a Downing Street interpretation of
17 intelligence conclusions and that anything useful was
18 seized on by the Government, including the 45 minutes
19 claim. So I accept your point, Mr Dingemans, it was not
20 identical, but it was not so different that it rang
21 alarm bells in my head.
22 Q. Mr Gilligan's own evidence to the Foreign Affairs
23 Committee, where critically he does not repeat what he
24 says the source had told him on the 6.07 broadcast; was
25 that not picked up?

49
1 A. It was picked up by me. I am not sure if it was picked
2 up by other Governors.
3 Q. Did you share it with the other Governors?
4 A. Well, other Governors had the Gilligan evidence to the
5 FAC included in their pack and, I believe, read it. But
6 I was also aware on that, on this exchange of letters
7 which had occurred between Mr Gilligan and
8 Mr Phil Woolace(?) subsequently in which Mr Gilligan
9 had, I think, threatened to sue Mr Woolace about making
10 a claim similar to the one you have just made and
11 explained he had not repeated the 45 minutes charge
12 because he had not been asked directly the question,
13 Mr Wallace said: look, Mr Gilligan, you have misled the
14 Committee because you have not given the gist of your
15 broadcast, as it was on the 29th May. Mr Gilligan said
16 he absolutely had.
17 Q. You have said you were not able to have the original
18 notes before you. You say that notes are not that
19 important. It would have been possible, would it not,
20 to have called for redacted copies of the notes?
21 A. I have not made the point that notes could not have been
22 available to the Governors on that day, they could have
23 been. And nor have I made the point redacting would
24 have made any difference. I was not making those
25 points. I was making the points --

50
1 Q. If those points --
2 LORD HUTTON: Did you want to add something? I thought your
3 reply was possibly cut short.
4 A. Okay, thank you, my Lord. It probably was but it has
5 gone out of my mind.
6 MR DINGEMANS: Accepting you had not made those points, do
7 you not think the Governors ought to have called for the
8 redacted notes?
9 A. This comes back to the different functions of the two
10 Boards. If we had asked for concrete evidence on all of
11 Mr Campbell's letters in the year 2003, not believing
12 what the Director of News told us or what the Director
13 General told us, and had asked for ourselves to see all
14 of the evidence produced by journalists or talked to
15 journalists themselves, it would have clogged up our
16 board meetings considerably. Of course, I recognise
17 this was an important, a very important juncture.
18 Q. You had called a special meeting to consider this
19 allegation alone?
20 A. Yes, but we were very aware that the accuracy of the
21 words Mr Gilligan used was an issue here, because we
22 were very aware that Mr Gilligan needed to have reported
23 his source accurately. But we were actually partly
24 guided, I think, by Mr Campbell's complaints, looking
25 more specifically at whether or not management knew the

51
1 source was credible and reliable. And the issue of
2 whether or not Mr Gilligan had accurately reported the
3 source came live a little bit later on. So we certainly
4 knew that it was an issue, it was logically an issue, it
5 was an issue that went through our minds and we did not
6 ignore. But it did not adopt the same centrality as it
7 now appears to at the time. And interestingly, I do
8 not -- there was concern about Mr Gilligan's language
9 expressed by one of the Governors, but there was no
10 concern that he may have meaningfully misreported the
11 words of the source. If that had been an issue,
12 Mr Dingemans, I think we would have asked for the notes.
13 But it was not apparently an issue.
14 Q. One other thing you could have done is ask for the draft
15 cues, which I gather are not normally kept for
16 a programme. We have now been supplied those. Can
17 I take you to BBC/31/2?
18 A. Yes.
19 Q. This as I understand is what is drafted, as it were, for
20 the 6.07 programme. If you look at it, it says "Draft
21 Cue":
22 "Doubts about the reliability of Tony Blair's
23 assertion last September that Iraq could deploy WMD
24 within 45 minutes have been confirmed by this
25 programme."

52
1 Then this:
2 "What do they say:
3 "Evidence that experts felt their work was being
4 misrepresented to justify an attack on Iraq to fit in
5 with the US led timetable for overthrowing
6 Saddam Hussein."
7 That may be important because Dr Kelly was certainly
8 an expert, and indeed that then puts the whole broadcast
9 into context. Go down the page to the final answer:
10 "No, it was real information. But it was included
11 in the dossier against our wishes because it wasn't
12 reliable."
13 If it is against the wishes of experts, we have
14 heard from Dr Jones, we have heard from Mr A, they are
15 experts, they were not happy, but that would have put
16 the broadcast in a proper context, would it not?
17 A. I think we have already, you know, conceded on the 6.07
18 that it was based on an interpretation of what Dr Kelly
19 told Mr Gilligan, because Mr Gilligan has said that.
20 I have seen -- I only saw this note yesterday actually,
21 Mr Dingemans.
22 Q. Join the club.
23 A. It did not appear to me, when I studied it, to add very
24 much to what I now know was in the notes. So it is not
25 clear to me that this document adds a great deal to what

53
1 Mr Sambrook would have seen in his inspection of the
2 notes. After all, he knew that Dr Kelly was an
3 "expert", in inverted commas. So I take this to be --
4 I mean, you can see there the whole -- the answer on the
5 classic was the statement that "WMD were ready for use
6 within 45 minutes", that statement comes pretty much out
7 of the notes. I think most of this does, actually.
8 Q. Indeed. It also makes clear who "our wishes" were,
9 expert wishes.
10 A. I think that is an -- you can draw that inference.
11 Q. Tell me if I am wrong.
12 A. I think you can draw that inference.
13 Q. Of course, I mean, in fact, that would have been
14 absolutely correct, as far as we now know, with the
15 evidence of Dr Jones and Mr A. But it was never
16 correct, was it, to broadcast against the wishes of
17 Intelligence Services, implying JIC?
18 A. Well, I think that again Mr Sambrook has said that in
19 his view now, knowing what he knows now -- after all, we
20 are talking with considerable additional information --
21 that it was not right to imply that the Joint
22 Intelligence Committee was objecting to this particular
23 piece of information going into the dossier or the way
24 it was expressed. However, I think Mr Sambrook said
25 that he did not believe that had been implied; and on

54
1 several occasions, I think, Mr Gilligan implies that it
2 was people in the Intelligence Services and not the
3 Joint Intelligence Committee.
4 Q. Finally, because my time is more limited than others,
5 BBC/14/86. You were shown this by Mr Sumption. He was
6 putting to you that it showed a state of mind whereby
7 the Governors were going to avoid buckling under
8 pressure. You were shown part of this e-mail, if we
9 scroll down "avoid buckling under pressure", et cetera.
10 A. Yes.
11 Q. Is this right, you, at the BBC, felt you could not back
12 down partly because Mr Campbell had accused you of
13 lying, at the Foreign Affairs Committee in his evidence
14 of 25th June?
15 A. No, I honestly do not think that is true. I think we
16 would have wanted to put on public record, absolutely
17 clearly, anything that we thought we had broadcast that
18 was misleading or wrong. That is our prime
19 responsibility to the public. It is not anything else.
20 However, within that prime responsibility, which
21 I completely agree with you is our prime responsibility,
22 the public was looking to the Board of Governors, in my
23 opinion, to say to the Government: the BBC is not the
24 state broadcaster. And I have to say to you that that
25 was very much in our thinking and still is, and you will

55
1 see from many of these e-mails and the exchanges I got
2 back that it was very much in the Governors' minds.
3 In addition to that, if you look at my e-mails in
4 the previous week, you will see that there are a series
5 of references to also not appearing to buckle under
6 management pressure, which was very important too.
7 Q. So that, at least, was partly in the Governors' minds.
8 We have heard in the Government's mind they considered
9 this a very serious attack on their integrity and
10 tantamount to a charge of dishonesty. Was this a case
11 where both sides had, as it were, put common sense and
12 perspective on the side when they had engaged in this
13 dispute?
14 A. Well, I did not feel that the Governors did that at all.
15 One of the advantages, of course, of the Governors is
16 that people are not sitting in the building every single
17 day and, you know, are not caught up with an atmosphere
18 that otherwise they might be, and are cool headed about
19 the matters. And I believe the Governors were. One of
20 the important reasons why we wanted to put on record
21 that we were not questioning the Prime Minister's
22 integrity was that we were deliberately trying to cool
23 the atmosphere.
24 MR DINGEMANS: Thank you, my Lord.
25 LORD HUTTON: Any re-examination?

56
1 MR CALDECOTT: No re-examination, thank you my Lord.
2 LORD HUTTON: Mr Davies you have referred in your evidence
3 this morning to the complaints procedure. Now, I think
4 Mr Dyke said in his evidence that the complaints
5 procedure, to work its way through to a conclusion,
6 would normally take a matter of months. Do you agree
7 with that?
8 A. I think it could have been done quicker in this case,
9 my Lord, if we had wanted to. A completely routine
10 complaint coming through the door would be investigated
11 by the PCU for some time. If there were an appeal it
12 would then be investigated by the GPCC, the Governors'
13 Committee. That could take months. I feel if
14 Mr Campbell had put in a complaint and asked us to
15 handle it quickly, we could have done it in a small
16 number of weeks at the longest.
17 LORD HUTTON: Yes, I see. Thank you very much, Mr Davies.
18 MR DINGEMANS: Counsel for Mr Lamb is going to examine him.
19 LORD HUTTON: Yes. Yes.
20 MR PATRICK LAMB (called)
21 Examined by MISS LIEVEN
22 LORD HUTTON: Just sit down, Mr Lamb, please.
23 A. Thank you.
24 LORD HUTTON: Yes, Miss Lieven.
25 MISS LIEVEN: Could you give the Inquiry your full name?

57
1 A. My full name is Patrick Lamb.
2 Q. And your position?
3 A. I am Deputy Head of the Counter Proliferation Department
4 in the Foreign and Commonwealth Office.
5 Q. I think it is correct that you have given evidence to
6 this Inquiry on three previous occasions in part 1.
7 A. That is correct.
8 Q. I am going to ask you questions on three areas: the
9 system of authorisation for Dr Kelly's press contacts,
10 Dr Kelly's mention to you of the fact he had spoken to
11 Mr Gilligan and Ms Watts, and the actions you took after
12 Dr Kelly's name became public.
13 On the first of those, can you just explain what
14 responsibility you had for Dr Kelly's press contacts?
15 A. When I became Deputy Head of the Department, ultimately
16 I took on responsibility for the various sections within
17 that Department, which included the nuclear section, the
18 weapons convention section, the chemical and biological
19 section and the UNMOVIC section. As a consequence of
20 that, I took on responsibilities for authorising and
21 agreeing Dr Kelly's contacts with the media. I should
22 add that that was also a responsibility shared by the
23 head of the UNMOVIC section, who was perfectly
24 authorised and entitled to offer policy advice in
25 conjunction with the FCO press office, which was

58
1 ultimately within the Foreign Office, the Department
2 which took the final decision. We offered policy
3 guidance to the press office who ultimately made that
4 final decision.
5 Q. To what degree did you consider it acceptable for
6 Dr Kelly to seek authorisation from you after he had
7 spoken to the press, in other words ex post facto
8 authorisation?
9 A. This would not be acceptable in my view. It is not
10 a concept which I frankly understand. The whole point
11 of the process was that the inquiries should be referred
12 to the press office who would then consult with in this
13 case my department and a decision would be made, and
14 once that decision had been arrived at, the decision
15 would be conveyed to Dr Kelly.
16 It is evident and clear that there were certain
17 occasions, such as seminars, receptions, where it would
18 be quite impossible for Dr Kelly or anybody for that
19 matter to say no to a journalist or ring up the press
20 office and say: can I or can I not speak? Those are
21 understandable occasions where we all end up speaking to
22 journalists without necessarily prior authorisation.
23 The only occasion that I can recall Dr Kelly
24 speaking as it were without prior authorisation goes
25 back some three or four years to an occasion when I was

59
1 then the head of the Chemical and Biological Weapons
2 Convention Section, when he called me to say that he was
3 about to be interviewed I believe by German radio or
4 German TV on the issue of smallpox. I believe I gave my
5 agreement to that because he had said what he was
6 intending to say in the course of that broadcast; and
7 once that broadcast was over I got a telephone call from
8 him giving me a quick run through as to what had
9 happened and taken place.
10 I consider that to have been a courteous reassurance
11 on his part to me of what had taken place. It obviously
12 gave me the ability, if need be, to take action in the
13 event that something untoward had been said. But
14 I think that there would still have been problems, both
15 for me and Dr Kelly, had something of a sensitive policy
16 nature emerged during that meeting. Therefore I am
17 afraid I do not accept there can be any ex post facto
18 authorisation.
19 Q. Up until the end of 2002, did you have any difficulty
20 operating the system of authorisation with Dr Kelly?
21 A. The system worked extremely well; and indeed it worked
22 very much at Dr Kelly's behest because towards the end
23 of 2001 to early 2002, Dr Kelly mentioned to the then
24 head of the UNMOVIC section that he was being, and the
25 words that were used were "badgered", increasingly

60
1 badgered by the press as the issue of Iraq rose up the
2 international agenda.
3 At that point there was a discussion between the
4 head of section and Dr Kelly, there was then
5 a subsequent meeting between the head of section,
6 Dr Kelly and the relevant press officer and it was
7 agreed that henceforth if Dr Kelly were contacted by
8 journalists, he should immediately refer that contact to
9 the press office who would make a decision on the basis
10 of who the journalist was, et cetera and the
11 circumstances at the time.
12 The press office are very clear about that, both
13 about the meeting and also about the understanding that
14 was reached because Dr Kelly, perhaps understandably,
15 shortly thereafter, when he was contacted by the press
16 would often say: I am perfectly happy to speak with you,
17 however I must refer it to the FCO press office. The
18 press office got back to Dr Kelly to say: please do not
19 say "I am happy to speak with you" because that put us
20 in a potentially very difficult and embarrassing
21 situation if we had to refuse. So there was a system
22 which worked and it worked very much at Dr Kelly's
23 behest and in order to protect him from unwanted press
24 attention.
25 Q. When did you become aware that Dr Kelly might be

61
1 departing from the procedure that you have explained?
2 LORD HUTTON: Miss Lieven, sorry to interrupt you. We give
3 the stenographers a break and I just have to choose an
4 appropriate time. I think this might be it when you are
5 going on to a slightly new subject. So I will rise for
6 five minutes.
7 (11.40 am)
8 (Short Break)
9 (11.45 am)
10 MISS LIEVEN: Mr Lamb, at what point did you become aware
11 that Dr Kelly might be departing from the procedure that
12 you have just outlined?
13 A. There was an incident on Sunday 13th April when I was
14 contacted at home concerning an article that had
15 appeared in the Sunday Times which mentioned Dr Kelly by
16 name and had excited a good deal of immediate press
17 interest. I was contacted by the duty officer in the
18 FCO press office in order to determine how we should
19 react.
20 There was also, as I now know, an article that
21 Dr Kelly had written for Miss Julie Flint. This
22 appeared in -- reference was made to it in The Observer
23 on 30th August this year.
24 Dr Kelly, I should add, previously, in addition to
25 clearing his press contacts also cleared all papers and

62
1 presentations through my office. This he did on
2 a regular and routine basis and fully understood, as do
3 all Porton scientists, that these matters have to be
4 cleared by the relevant Whitehall Department, MoD and
5 also FCO. Dr Kelly made no mention of this article and
6 therefore that also represents, I now understand and
7 recognise, a further departure from his normal practice.
8 Q. In respect of the article on 13th April in the Sunday
9 Times, when that was brought to your attention by the
10 press office what steps did you take?
11 A. I contacted Dr Kelly at home. I did not have his home
12 telephone number on me but I was in the habit of
13 speaking to him and recollected it from memory. I spoke
14 to him and reported what was happening. He said, as
15 I recall, that he had also been contacted by another
16 press outlet and I discussed with him how we should
17 react. I indicated that obviously I was very unhappy at
18 the reference to his name associated with comments about
19 a senior Iraqi official and the implications that could
20 have for any further proceedings against that official,
21 as well as the fact that clearly it was unfortunate and
22 undesirable that UK officials be commenting, without
23 authorisation, on events as they were arising in Iraq.
24 Dr Kelly accepted and understood that.
25 It was agreed with him that he should refer any

63
1 further inquiries directly to the FCO press office, and
2 it was further agreed with the FCO press office that we
3 would say that Dr Kelly was unavailable for further
4 comment. He was very happy with that outcome.
5 Q. In the light of your knowledge of events at the time,
6 how confident could you be that Dr Kelly knew he had
7 needed authorisation to speak to the media?
8 A. I believe he knew he needed authorisation, as I say,
9 because of the fact that he had broached us very
10 specifically in late 2001/early 2002 and the procedures
11 had been set in place because he was becoming the victim
12 of increasing press attention. I think that the whole
13 pattern of any relationship with him, and the
14 relationship he had between -- with the Foreign Office,
15 the papers that we cleared routinely for him, whether
16 for the International Institute of Strategic Studies,
17 whether for presentation in the Foreign Office or
18 presentations at seminars, all of these matters ensured
19 that Dr Kelly I think perfectly understood he needed
20 policy guidance and authorisation from me and from my
21 office.
22 Q. What was your understanding of the position on handling
23 press contacts that might involve areas covered or led
24 by the MoD, the Ministry of Defence?
25 A. In the practice that -- in the method that was set up,

64
1 clearly the call would come into the Foreign Office or
2 it might be referred to us by David Kelly, and we would
3 not know at that immediate point, nor would he, exactly
4 what areas the journalist wished to cover. It would be
5 in discussion with the press office that the journalist
6 would set out the areas that he wanted to discuss; and
7 it would be, at that time, a matter for the press office
8 and, to some extent, me to determine whether these were
9 properly FCO issues or whether one or other of them was
10 an MoD lead. At that point it would be for the press
11 office to contact their MoD opposite numbers to bring
12 them into the discussion as to whether Dr Kelly should
13 go ahead with this particular interview.
14 Q. Can I move on to the second topic I wish to cover. When
15 did you first become aware that Dr Kelly had spoken to
16 Mr Gilligan and Ms Watts?
17 A. I believe that this took place or rather I believe he
18 spoke to me some time in late May. I say this for two
19 reasons. I believe it had to be subsequent to his
20 conversations with Ms Watts, which I now know took place
21 on 7th and 12th May. I believe it had to be subsequent
22 to his conversation with Mr Gilligan which took place on
23 22nd May, because Dr Kelly referred, very fleetingly and
24 very briefly, to the fact that he had spoken to both
25 those journalists in a conversation that took place in

65
1 my office. He did not elaborate. He made no further
2 comment or explanation or exposition as to what had
3 taken place, if anything. And I noted, very
4 specifically, those two names and that I remember
5 specifically -- the only element of the conversation
6 I now retain is the fact, and retained even at the time,
7 that he had spoken to two named journalists and that
8 I was unaware that he had sought authorisation.
9 Q. Why did you not follow it up at the time that Dr Kelly
10 made those comments?
11 A. I did not follow it up at the time because he did not
12 specifically say to me that he wished to raise a matter
13 with me. He did not specifically say: I would like to
14 discuss with you what took place, or give me any run
15 through as to what had happened, as he had done
16 previously in the case of the German TV radio interview
17 where he had gone through it in detail.
18 Dr Kelly, I should add, on that occasion, and
19 because I was extremely busy with covering two posts
20 within the Proliferation and Arms Control Department at
21 that time and was dealing with another meeting which I
22 cannot refer to here but was a bilateral meeting with
23 another country, an issue that country had raised
24 already at Prime Minister level, I was the lead FCO
25 official dealing with that meeting, which took place

66
1 eventually on 28th May, and running with all the
2 arrangements for it and preparations for it. That is
3 why I was extremely busy, as I now recall. It was that
4 particular issue that was dominating my attention.
5 Dr Kelly, I think, could and should have spoken to
6 either of my three colleagues, possibly four colleagues,
7 to whom he could have drawn this -- he could have drawn
8 this to their attention and any one of them would have
9 realised what needed to be done. He could and should
10 primarily have spoken, in my judgment, to the press
11 office as well. He did not.
12 This was a fleeting reference and comment made to me
13 at a time when he knew and saw that I was busy.
14 Dr Kelly and I normally sat down at the table in my
15 office when he came to call. On this occasion my
16 distinct recollection is of being behind my desk,
17 totally preoccupied with the work I was doing, and of
18 him standing in the doorway. It was most unusual for us
19 to have such an exchange. It was a very fleeting and
20 brief exchange.
21 Q. Can I come on to the final area, actions you took once
22 Dr Kelly's name became public. Did you try to contact
23 him once his name came into the public domain?
24 A. I tried to contact him on both the 10th and 11th July.
25 I had seen the press comments, obviously, following the

67
1 emergence of his name and I was distressed by those
2 comments and knew that he would be distressed similarly.
3 These were comments that referred to him as the MoD
4 mole. This was a man who I knew had been largely
5 responsible for taking down the Soviet biological
6 weapons programme, he had been heavily involved in
7 dealing with the Iraqi BW programme, and to refer to him
8 casually as a "mole" I knew was something that I found
9 hurtful and I knew he would find hurtful. There were
10 comparisons with Harold Shipman. There were comparisons
11 of a sort that I found personally distasteful. I knew
12 that he was a sensitive man and I was deeply offended
13 personally and all his colleagues similarly offended by
14 the treatment he received at that time.
15 That determined me to speak with him or try and
16 speak with him on the 10th and also the 11th July, and
17 I was unsuccessful on both occasions. I tried to
18 contact him at home but, as I recall, his voicemail was
19 not working and I therefore decided that he was
20 unavailable for comment, in effect. I also tried his
21 mobile number, but that was -- I also think that that
22 was switched off. Therefore, as a result of those
23 abortive -- I tried, as I say, to ring on two occasions,
24 once in the company of a fellow FCO official who called
25 into my office, I said: I will try to put a call through

68
1 to David now. This was on 11th July. I was
2 unsuccessful also on that occasion.
3 Q. Did you succeed in speaking to him on 14th July?
4 A. I did. He, I believe, called in first to speak to my
5 colleague Colin Smith and I was aware that he had called
6 and Colin gave me a brief account of the conversation
7 and his impressions of Dr Kelly's overall state of mind
8 or attitudes and so on. And I asked Colin to ask
9 David Kelly if he would value a telephone conversation
10 with me. David Kelly indicated that he did and as
11 a result I put through a call to him, I think at around
12 3.30/4 o'clock in the afternoon of the 14th July.
13 I should add that even in the calls on the 10th,
14 11th and on 14th July, and without any full knowledge of
15 anything that has subsequently occurred, I was aware
16 that those telephone calls could technically put me in
17 some difficulty insofar as there could be -- it could be
18 construed that I was in some way either trying to coach
19 or in any way in some way assist or determine exactly
20 what he was going to say. I was aware of those possible
21 complications but decided to go ahead anyway. That was
22 not the purpose of my call. My call was to express
23 personal sympathy and support for him.
24 Q. What was the gist of the conversation you had with him
25 on the 14th?

69
1 A. I ran very quickly through -- I was keen to find out how
2 things had gone. I had not spoken to him, obviously,
3 for a period of 10 days. I did not know what had gone
4 on with the various meetings he had had over that time,
5 and I was keen to found out both what had happened and
6 how he was feeling. I was keen to establish that he
7 would not suffer -- I think I did ask him a question
8 about the pension rights because that, for some reason,
9 was very much in my mind and I wanted almost to be
10 reassured myself that he was not going to face that
11 penalty. And when he confirmed that that was the case,
12 I said: well, look David, you know, the worst is over,
13 there is nothing more very much to happen.
14 I then spoke to him about the Foreign Affairs
15 Committee, about which I had some personal knowledge
16 having appeared before them, and said they were a decent
17 bunch and that he should really not be too bothered by
18 what would ensue on the morrow. I also invited him
19 to -- when I called him -- excuse me, I should add that
20 I believed he was going though both the Foreign Affairs
21 Committee and the Intelligence and Security Committee on
22 the same day, the 15th July. I invited him to lunch in
23 between the two Committee hearings. It was then he
24 apprised me that in actual fact the meetings were going
25 to be staggered over two days. I said -- I asked him to

70
1 come into FCO following the FAC hearing. He said he was
2 too tired and would go home.
3 I then said to him: well, come in and see us at the
4 end of the week, once he had been through both the FAC
5 and the ISC. And it was on that note that I ended the
6 conversation.
7 I did also tell him --
8 LORD HUTTON: Sorry, was the request to come in and see him
9 just really as a gesture of friendship and to give him
10 support?
11 A. Absolutely, my Lord. It was -- the whole intention, so
12 far as there was a conscious intention, was simply to
13 say: you are still welcome here, it changes nothing in
14 terms of our relationship whatever may be happening or
15 had happened and you are still welcome here.
16 Dr Kelly asked me if I could attend the FAC hearing,
17 which was the first occasion -- this was a man I looked
18 up to. As a policy person you are sometimes an
19 interloper in the areas of the experts, in particular
20 experts such as Dr Kelly, and you feel an interloper and
21 you wonder what their reaction and attitude to you is.
22 This was the first occasion when I instinctively
23 understood that he valued my opinion, valued and had
24 certain respect for my judgment, and also would have
25 appreciated my personal presence at that hearing.

71
1 Excuse me.
2 I explained to him that it was impossible for me to
3 attend. I did not go into the full details but the
4 reasons are very simple. He was appearing as an MoD
5 official and accompanied by the Ministry of Defence.
6 The arrangements had been made by the Ministry of
7 Defence with the Foreign Affairs Committee, and
8 therefore I had no professional locus in attending or
9 being present. My attendance would in any case,
10 I think, have only confused whole issues of line
11 management which have obviously become a matter of some
12 importance.
13 I also knew that the only way I could attend would
14 be in the public gallery and that would give me no
15 opportunity to either speak with him or in any way give
16 him advice.
17 I did, however, ask a colleague in our Parliamentary
18 Branch to introduce himself to David Kelly and I told
19 David Kelly that that is what would happen. I therefore
20 consider that I did, at that particular point, about
21 4 o'clock on that Monday afternoon, everything I could
22 to give assistance to Dr Kelly, who was going before an
23 ordeal certainly but an ordeal that was analogous to the
24 pressure and many of the instances he must have
25 experienced both in the former Soviet Union and Iraq.

72
1 I obviously had no inkling or foreknowledge of what
2 would follow.
3 Q. Did you try to contact him after the hearing on the
4 following days?
5 A. No. As I think I tried to reassure him: just get
6 through these hearings and that will be the worst of it
7 behind you. I think, and all my colleagues in FCO were
8 of the view the worst was behind him by the time he had
9 come through the Intelligence and Security Committee
10 hearing. As I say, there was the standing invitation to
11 him to come into the FCO on either Thursday the 17th or
12 Friday the 18th. There was no real need to speak to him
13 in that respect. I think I might have spoken with him
14 on the Friday, for example, just to check how things
15 were, but clearly by then events had taken another turn.
16 MISS LIEVEN: Thank you very much, Mr Lamb.
17 LORD HUTTON: Thank you very much.
18 Mr Gompertz.
19 Cross-examined by MR GOMPERTZ
20 Q. Do you remember, Mr Lamb, that you gave evidence before
21 the Inquiry on, I think, 14th August?
22 A. Correct.
23 Q. Do you also recollect that the very next day, the
24 15th August, I believe you made a statement to the
25 Thames Valley Police?

73
1 A. That is correct.
2 Q. Is that right?
3 A. That is correct, yes.
4 Q. Can I just take you to a couple of passages in that? If
5 you want to refer to it by all means do. TVP/10/53 is
6 the reference. If you have a hard copy in front of you,
7 I am looking at page 6 of 8 in my copy.
8 What you say there was that Dr Kelly was evidently
9 nervous and very tense before his appearance in front of
10 the Foreign Affairs Committee. Do you have that?
11 A. Yes, I have, yes. Excuse me. Yes.
12 Q. This was understandable and perfectly normal. At the
13 end of that paragraph you say:
14 "He would have been distressed by the extent and
15 nature of the media coverage."
16 Right?
17 A. Yes, indeed.
18 Q. That accords with your knowledge of the man?
19 A. It certainly does. As I think I said, when I saw much
20 of the media comment, and I think it must be similar or
21 comparable to many people when they see a friend
22 suddenly as a public figure, one can sometimes be very
23 upset and distressed by the manner in which they were
24 referred to. This includes by what is sometimes termed
25 the quality press, and I was very distressed at the

74
1 coverage of his -- of Dr Kelly, and I sensed that he
2 would be as well because he was a very sensitive man.
3 Q. Yes. If you turn back two pages, to page 4 of that
4 statement, in the last paragraph, it is TVP/10/51. In
5 the second line you say that it was evident that
6 Dr Kelly wanted to talk when you called him.
7 A. Yes, indeed.
8 Q. Yes. The next page, page 5, at the bottom, TVP/10/52:
9 "From the tenor of our conversation it was evidence
10 that he felt under pressure."
11 You were doing your best, as someone who knew him
12 quite well, to reassure him?
13 A. That is correct, yes.
14 Q. Well, that is very understandable. Do you know whether
15 anybody else ever did what you did?
16 A. Within the Foreign Office?
17 Q. Hmm.
18 A. I do not believe so. To some extent people were coming
19 to me, my former colleague, the former head of the
20 UNMOVIC section had come to me and we were discussing
21 it. I was very much, if you like, the conduit for
22 expressions of sympathy probably within the Foreign
23 Office. But I am not aware that other colleagues did --
24 however, Mr Smith, my colleague Colin Smith did also
25 speak with Dr Kelly on the 14th.

75
1 Q. Was that on the telephone or face to face?
2 A. That was on the telephone.
3 Q. We will hear from Dr Wells shortly. Do you know if
4 anybody, to your knowledge, actually sat down with him
5 and talked the whole thing through?
6 A. I can only speak, sir, for the Foreign Office and
7 Foreign Office officials, and we were not involved with
8 the process that was taking place in the Ministry of
9 Defence and --
10 Q. You cannot speak for the MoD?
11 A. -- I cannot speak for the Ministry of Defence, no.
12 Q. Let me go on to the other matters you have given
13 evidence about.
14 If I may say so, Mr Lamb, it would appear that there
15 is a change of emphasis in your evidence today as
16 compared with your previous appearance before the
17 Tribunal. Would that be fair?
18 A. Clearly, sir, I have cast my mind back to the events
19 that I referred to in that first evidence and witness
20 statement and I do not believe there is a change in
21 tenor. My attitudes then were the same as they are now,
22 but clearly I have gone back and looked in more detail
23 at other issues. For example, the whole issue of the
24 clearance of written papers and presentations.
25 Q. Yes.

76
1 A. When I gave evidence on the previous occasion it was to
2 focus on media handling, put rather crudely. It has
3 obviously -- I think it is valid to make clear that
4 Dr Kelly understood that the policy authority rested
5 with the Foreign Office, with my office, to some extent
6 with me, in clearing other papers and presentations that
7 he made. And I think that is therefore valid and of
8 interest to the Inquiry.
9 Q. When he came to you, did you ever, on any occasion, say
10 to him: this is not a matter for me, you go to the MoD
11 and deal with them?
12 A. Not specifically, sir. As I have said, the issues that
13 would come up in terms of a -- from a media perspective
14 would come in the manner I have described, sometimes
15 without any clear indication, when the request was made,
16 as to what issues the journalist wanted to cover. And
17 it was at that juncture that the press office and
18 I might become aware of a range of questions.
19 It is at that point -- I would not be dealing
20 directly with Dr Kelly at that particular point. It
21 would be a discussion between myself and my opposite
22 number in the press office. We would be making
23 decisions as to where the policy lead was with respect
24 to a particular issue and therefore whether there was
25 a need to contact the Ministry of Defence.

77
1 Q. You do not recollect any occasion when that, in fact,
2 happened?
3 A. I cannot recollect any occasion when that happened. The
4 reality, in fact, being that many of these issues,
5 although it might seem simple to try to draw
6 a distinction between the Ministry of Defence and
7 Foreign Office responsibilities, that is actually rather
8 difficult in dealing with the whole issue of Counter
9 Proliferation. There are three main Departments
10 involved: the Foreign Office, the Ministry of Defence
11 and the Department of Trade & Industry. We work almost
12 as a unit, and it is very rare for there to be meetings
13 in Whitehall without representatives of both of those or
14 all three Departments being present. Nevertheless, the
15 ultimate policy lead in all of those areas rests with
16 the Foreign Office because you are talking about an arms
17 control framework, in this instance, that is established
18 by the conventions and treaties to which the
19 United Kingdom is a signatory. They ultimately act as
20 the basis and framework on which we can act.
21 Q. I do not want to interrupt you but I only have limited
22 time, you understand, Mr Lamb.
23 A. I am sorry.
24 Q. Would this be right: it would be difficult for Dr Kelly,
25 quite apart from yourself, to know precisely to which

78
1 body he should be making application for permission to
2 speak to the media?
3 A. I do not believe so, sir.
4 Q. No?
5 A. I think he very clearly understood that his primary
6 point of contact was the Foreign Office. He indicated
7 that actually in his evidence before the Foreign Affairs
8 Committee. I do not think there was any confusion or
9 uncertainty in Dr Kelly's mind. As I said, in reality
10 the way in which the question would come forward would
11 be in such a way that it might be for the press office,
12 the FCO press office, and myself to reach a decision as
13 to which was an MoD issue, which was an FCO issue --
14 I work very closely with the Ministry of Defence and
15 indeed I started my Civil Service life as a Ministry of
16 Defence official. Therefore I am very very aware of
17 where the writ runs in Whitehall as between the FCO and
18 the MoD.
19 Q. Could I ask you to look at TVP/10/53, page 6 of your
20 statement to the police, where, at the bottom of the
21 page, page 6 of the statement you were looking at,
22 four lines up you say this:
23 "Prior to 2003 in my experience he had been careful
24 to ensure that the Foreign Office was aware, most often
25 in advance, of any media interviews."

79
1 The obvious inference from that statement is that
2 there were occasions when that permission or informing
3 process took place ex post facto. Is that fair?
4 A. No, I do not believe that is accurate. I can recall
5 only two instances when the procedures I have described
6 were not followed; and both of those instances go back
7 to when I was not, in fact, the Deputy Head of
8 Department but rather responsible for the chemical and
9 biological weapons section, when I recall the instance
10 with the German TV radio interview more clearly. There
11 was no time and he was, if not doorstepped it was
12 proposed that he give this interview very, very rapidly;
13 and he spoke to me on that occasion because it was
14 a biological weapon related issue and therefore I was
15 the person who could at least discuss it with him.
16 But -- and those are the only instances that I can
17 recall, and these go back prior to 2000, when there was
18 not -- when this procedure was not followed.
19 Q. Can I invite you to recollect your evidence on a
20 previous occasion? You said, in answer to Lord Hutton,
21 that in theory and properly he, Dr Kelly, should have
22 approached the press office about each and every
23 request. I am looking at page 102 if you have it in
24 front of you. I am sorry, I do not have a copy to show
25 you. In practice, you then said, as I think we all

80
1 know:
2 "... once a journalist has a number they will tend
3 to pursue that person or ring that person without -- off
4 the cuff. Dr Kelly worked from home, to a very large
5 extent; and so that meant that often, I presume, he
6 would receive calls at home having exchanged a card with
7 a journalist. And certainly there were instances where,
8 for reasons I perfectly understand, he had no
9 opportunity to seek prior authorisation or clearance.
10 But in my experience he was also very scrupulous about
11 informing us after the event. That in itself was
12 helpful, very helpful in the event that something arose
13 following that particular interview --"
14 Is that a fair summary?
15 A. I think that is an accurate reading of what I said on
16 that occasion.
17 Q. Thank you. Is it a fair summary of what happened?
18 A. It is a summary of what happened. Let me explain. The
19 point is that I recognise perfectly that Dr Kelly was
20 attending seminars, he was attending receptions, as
21 I do, and there were occasions when journalists will
22 meet with him and those are not occasions when this
23 procedure can be followed, self-evidently.
24 There are also instances where Dr Kelly would have
25 exchanged a card or a telephone number with a

81
1 journalist, a meeting with that journalist may have been
2 approved by the Foreign Office, and that journalist
3 rings Dr Kelly to clarify a particular point or pursue
4 some other item. I would not expect Dr Kelly to put
5 down the phone and say: sorry, I cannot speak about this
6 issue until I have spoken to the Foreign Office. There
7 is an element whereby -- as I said, I believe, elsewhere
8 in my evidence, there is an element of self-discipline
9 and judgment involved in all of these matters, and that
10 self-discipline is imposed on all of us involved,
11 including Dr Kelly. I believe that if he were contacted
12 by a journalist say two or three months after an initial
13 contact, he should at that point have referred that to
14 the Foreign Office, because the whole point of getting
15 policy and press office agreement is to take account of
16 events as they are today and not events as they were two
17 or three months ago.
18 Dr Kelly, I think, understood very clearly that he
19 should not become involved on commenting on current UK
20 Government policy.
21 Q. The words you use there, "self-discipline" and
22 "judgment", are an echo from a document I think you
23 prepared, CAB/1/115. If we can scroll down to
24 paragraph 4 -- having described the system, I am not
25 going to go through it because we have looked at this

82
1 document before, but you say this:
2 "This system, which ultimately relied on
3 self-discipline and judgment on all sides, worked well
4 and provided the media with expert background briefing
5 and led to no embarrassments for HMG over the period
6 2000-2002."
7 That is fair, is it?
8 A. It is fair, yes. It is an accurate reading of what
9 I said.
10 Q. Thank you very much indeed.
11 Can you just look back to paragraph 2, the same
12 document:
13 "There were obviously also instances where he was
14 contacted first by the journalist or researcher but he
15 was, as far as I was aware, scrupulous about informing
16 FCO in order to seek prior agreement and discuss areas
17 on which he should not be drawn."
18 A. That is a reference to the practice that was drawn up
19 in, as I say, early 2002 as Iraq began to rise up the
20 international agenda and where very specifically, with
21 his agreement and at his request, we decided that when
22 he received such a telephone call he should refer it
23 immediately to the Foreign Office and my press office
24 colleagues inform me that he did so.
25 Q. Thank you.

83
1 Last topic. The conversation, brief as it was, that
2 he had with you about his contact with Mr Gilligan. Can
3 I just ask you this: he would come as a matter of course
4 and speak to you in your office, would he not?
5 A. Yes. When he called into the Foreign Office it would be
6 for a variety of reasons. It could be work and policy
7 related. It could be to pick up tickets for travel and
8 so on and so forth. And we would often know when he
9 would be coming in and we would probably make an
10 agreement to have a discussion.
11 Q. Yes. You told us last time that you would make time to
12 sit down with him and discuss things on a fairly
13 informal basis, "We would sit at the table and discuss
14 them".
15 A. That is certainly the case.
16 Q. That would be the norm, would it?
17 A. It would be the norm, yes, sir.
18 Q. On this occasion when he mentioned Mr Gilligan you were
19 extremely busy?
20 A. That is correct.
21 Q. So there was not the opportunity for him to sit down
22 with you and discuss the matter, was there?
23 A. No, there was not. But the fact of the matter also is
24 that he had most probably come from a meeting with my
25 other colleagues in the UNMOVIC section. Any one of the

84
1 three of them would have been able to react to a comment
2 from him or a request from him or an account from him as
3 to what might have happened. He could have spoken to
4 the Head of Department on that day. He could have
5 spoken to the FCO press office --
6 Q. He could have done anything -- I am sorry to interrupt
7 you -- but you were his normal point of contact on these
8 matters?
9 A. No. As I think I said in my earlier evidence, that
10 would be wrong. I am the person here giving evidence
11 and speaking on behalf of the Counter Proliferation
12 Department because I have an overview of those contacts
13 over the longest period of time. But the reality is
14 that the head of UNMOVIC section was the person at one
15 stage with whom he had most dealings and who was
16 perfectly entitled and authorised to give agreement to
17 Dr Kelly speaking to the media in conjunction with the
18 press office. Ultimately the decision always lay with
19 the press office. I and my colleagues gave policy
20 advice to the press office, but in an instance where
21 there was some disagreement between my Department and
22 the press office as to whether an individual or an
23 official should give an interview, ultimately the press
24 office has the final say.
25 Q. For all you knew, had you not been so busy he might well

85
1 have sat down and given you a full report there and
2 then?
3 A. I think, sir, that he realised that I was busy. As
4 I say, those were the normal ways in which we worked.
5 He knew I was busy. He could see that. It was
6 self-evident. I think that if he had something or
7 a problem concerning those interviews, then he had many
8 other opportunities that day to speak to any one of
9 four/five officials.
10 Q. Did this report make you sit up and take notice?
11 A. It caused me to mentally note that he had spoken -- the
12 names he mentioned.
13 Q. Yes.
14 A. And that I was unaware of any request by him to speak to
15 those journalists.
16 Q. So did you follow it up?
17 A. I was extremely busy at the time, sir --
18 Q. Did you follow it up?
19 A. I did not immediately follow it up.
20 Q. You say "immediately". You did not follow it up at all,
21 did you?
22 A. I did follow it up, because as events began to build in
23 the course of June and the other events which came to my
24 attention, namely a story that had appeared in
25 The Observer concerning a British BW expert commenting

86
1 on trailers which had been found in Iraq, the strong
2 suspicion began to arise that Dr Kelly was the source of
3 that story. We now know indeed he was the source.
4 I was in conversations with colleagues from the Defence
5 Intelligence Staff about that particular matter. As
6 a result of that, it began to gel in my mind that
7 I recalled and recollected the conversation I had had
8 with him, and suddenly a pattern began to appear.
9 Q. So you did not follow it up with Dr Kelly?
10 A. I did not follow it up with Dr Kelly. Dr Kelly departed
11 I think on 26th May for New York. He was in New York
12 from the 26th to 29th May. The BBC broadcast was on
13 29th May. As I think I said in my earlier evidence,
14 when I heard that broadcast, apart from realising that
15 it was inaccurate, the reference was to an intelligence
16 officer, a senior intelligence officer. That did not
17 fit the bill for David Kelly and I hoped, as a friend,
18 that he was not, indeed, the source of that particular
19 story.
20 MR GOMPERTZ: Thank you, Mr Lamb.
21 MISS LIEVEN: No re-examination.
22 LORD HUTTON: No re-examination.
23 Thank you very much indeed, Mr Lamb.
24 MR DINGEMANS: Dr Wells, please.
25

87
1 DR BRYAN HARRY WELLS (called)
2 Examined by MR DINGEMANS
3 Q. Can you give his Lordship your full name?
4 A. My name is Dr Bryan Harry Wells.
5 Q. Have you given evidence before?
6 A. I have, yes.
7 Q. Can I just ask you a couple of questions, if I may?
8 A. Yes.
9 Q. Last time you were asked about some of the telephone
10 contacts you had had with Dr Kelly but obviously --
11 A. Yes.
12 Q. -- at that stage you had not had available all the
13 records, either Dr Kelly's records or indeed yours.
14 Have you now had a chance to look through those records?
15 A. I have obtained, sir, the records of the ingoing and
16 outgoing calls to my office, to and from my office, and
17 records from my mobile phone as well.
18 Q. Can I take you to a document which is MoD/45/2, where
19 I think you have helpfully listed the calls. Is this
20 the product of going through all those logs?
21 A. To the best of my ability this is my analysis of the
22 records.
23 Q. This shows DK mobile, BW office; I imagine that is
24 David Kelly's mobile to Bryan Wells' office, is it?
25 A. It is from and to, sir, yes.

88
1 Q. Yes. Those are the calls that you have been able to
2 identify on the 9th, 10th, 11th and 13th July?
3 A. That is correct. I did not speak to David on Saturday
4 12th July.
5 Q. Can I then just deal with some specific calls? The
6 first is on 9th July when you contacted Dr Kelly after
7 he had seen Mr Rufford. We can see on 9th July various
8 calls that are made.
9 A. Yes.
10 Q. I think when you gave evidence first you recollected
11 that it was some time in the afternoon.
12 A. That is right, sir. I knew that I had taken a call from
13 David at around about 3.30, and those calls are logged,
14 15.28 and 15.29. I had -- did not have the records of
15 my mobile phone available at that time and I did not, at
16 that time, recollect a series of telephone calls between
17 7 and 8 o'clock in the evening. I now believe that the
18 phone call at 19.54 was when he told me about
19 Nick Rufford.
20 Q. What were you discussing earlier on during the day, on
21 9th July?
22 A. The calls that would have been before 7 o'clock were
23 principally concerned about the recruitment of
24 inspectors for t