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This article has been added to www.peterellis.co.nz
because of the similar concerns in New Zealand about the findings of
the Eichelbaum Inquiry on the Ellis case.
As a Ministerial Inquiry, Eichelbaum has been criticised as delivering a
verdict to suit the Ministry of Justice. That criticism (of the Eichelbaum
Inquiry) is justified on the basis that all expert witnesses recommended by
Ellis' lawyer were not considered. On the other hand Eichelbaum accepted
recommendations from the Ministry of Justice who had previously shown their
bias as almost the only critics of the book "A City Possessed"
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http://observer.guardian.co.uk/comment/story/0,6903,1136381,00.html
The Observer
February 1, 2004
Schooled in scandal
Judge-led inquiries have a long track record of
failing to criticise governments of their day
by Nick Cohen
Fiat justitia,
ruat caelum, judges once bellowed. 'Let justice be done though the heavens
fall.' It's a proud slogan. The law must take its course even if the powerful
are brought low and the foundations of the state shaken. Unfortunately, a
slogan is all it is. Most judges want the heavens to stay just where they
are, thank you very much, and blanch when asked to confront the misconduct of
the powerful.
A more realistic guide to their behaviour was blurted out by Lord Denning in
1980. Before his Lordship's court were the six men who had been convicted of
the Birmingham
pub bombings. They alleged that the West Midlands
police had beaten them up, and were suing for damages. Denning realised that
accepting the police had beaten them up meant accepting that the police had
beaten false confessions out of them, which meant accepting that the police
had framed innocent men for one of the worst IRA atrocities on the British
mainland. 'This,' said Denning as he dismissed the case, 'is such an
appalling vista that every sensible person in the land would say, "It
cannot be right these actions should go any further."' The men spent 10
more years in jail before the grudging courts accepted that they weren't
guilty after all.
If it's hard for conventional judges to overthrow conventional wisdom when
convicts appeal, imagine the doubts which must assail them when they are
asked to conduct a judicial inquiry into political misdemeanours. In criminal
cases a judge sums up the evidence, waits for the jury to deliver its verdict
and passes sentence. But judicial inquiries are into scandals in which no
crime has been committed, other than the 'crimes' of messing up or misleading
the public. In civil cases, a judge decides if a contract has been broken and
then orders compensation to be paid. But judicial inquiries aren't into
breaches of contract, unless it's the 'contract' between the rulers and the
ruled.
Without statute or precedent to guide him, the judge is meant to deliver a
political verdict. A stinging paragraph might bring down the Prime Minister.
Yet as the judge sits alone in his study, he wonders whether it is his job to
stage a judicial coup d'état. Shouldn't Parliament depose the Prime Minister?
Or the electorate? James Dingemans, QC for the Hutton inquiry, said at the
end of the hearings that wider questions about the war were raised by the
particular circumstances of David Kelly's death. But these were issues for
'other institutions' to investigate.
It sounds fine in theory. But if a judicial inquiry is soft on the powerful
so the judge can avoid being accused of usurping the functions of MPs and
voters, it's impossible for him to produce a fear lessly honest piece of
work. The wonder of the past six months is that so many people, from Michael
Howard to anti-war protesters, have failed to learn from the history of
judicial inquiries that fearless honesty is not their distinguishing
characteristic. Judges nearly always pull their punches. A few do so with
regret. Most wouldn't want to lay a finger on the state even if they thought
they could get away with it.
Lord Denning fell firmly into the second category. In 1963 he conducted the
judicial inquiry into the love-life of Jack Profumo, Secretary of State for
War in the then Conservative Government. Profumo was sharing the affections
of Christine Keeler, a call girl, with Eugene Ivanov - a naval attaché at the
Soviet Embassy. The press had the first great sex scandal of the modern age
and used the claim that national security was endangered to justify printing
the juicy details. Denning's inquiry combined deference and vindictiveness in
equal measures. The deference was shown to the Government of the day. The
vindictiveness was reserved for Stephen Ward, Keeler's friend and part-time
pimp, who was painted as a lascivious monster. Conveniently, he had committed
suicide and was in no position to answer back.
Lord Widgery's inquiry into the shooting dead of 14 unarmed demonstrators in Northern Ireland
in 1972 exonerated the Army. Not one soldier was disciplined, let alone
prosecuted. By one of those coincidences which make you wonder, counsel for
the Ministry of Defence was Brian [later Lord] Hutton. Widgery's whitewash
convinced Catholic opinion that the phrase 'British justice' was an oxymoron.
It so inflamed nationalists that a condition of the Good Friday Agreement was
that a new investigation must be set up if the peace process was to go ahead.
Lord Saville has spent £200 million to date investigating what should have
been investigated 30 years ago. Perhaps it is only now that Bloody Sunday has
been safely consigned to history that the judiciary can face the truth about
what happened. By this reckoning we'll have a complete account of the run-up
to the Iraq
war sometime in the 2030s.
Not all judicial inquiries are as bad as Denning's and Widgery's. When the
stakes don't involve high politics, judges can rigorously examine the causes
of explosions on North Sea oil rigs or
racism in the Met. But the general pattern is one of judges realising that
they might be expected to condemn government incompetence or deceit and
averting their eyes from the 'appalling vista' which looms before them. Lord
Franks's inquiry into the Falklands War of 1982 exposed the blunders of the
Thatcher Government, which all but invited the Argentines to invade, with
admirable clarity. But concluded that no one in the Thatcher Government was
to blame. Sir Richard Scott described how the Thatcher and Major Governments
helped Saddam Hussein, and then refused to offer any conclusions whatsoever
about who was to blame.
I said at the start of this inquiry the difference between Hutton and his
predecessors wouldn't be found in the judge but in the publicity his efforts
received. Denning and Franks took evidence in private. The press pack at Sir
Richard Scott's hearing dwindled to a few obsessive journalists. Hutton's
inquiry was a public inquiry which, for once, was covered exhaustively. The
public had the information to make-up its own mind.
Last week a furious Government was complaining that charlatans were crying
'whitewash' because they couldn't take defeat gracefully. It's true that
journalists are the world's worst hypocrites; we want everyone to be held to
account - except ourselves. It's also true that many in the anti-war movement
wouldn't accept any verdict other than Tony Blair sold his soul to the Devil.
But it's perfectly possible to believe that the BBC wasn't big enough to
apologise for its mistake and that Andrew Gilligan sank as low as it's
possible for a journalist to sink when he betrayed David Kelly, and still
find Hutton's efforts feeble.
His Lordship has invented a novel gambit which Denning and Widgery might have
applauded. He used his terms of reference like a mugger uses a doorway. When
the BBC walked by, he leapt out and gave it a kicking. When the big boys from
the Government turned into the street, he hid in the shadows.
Strictly speaking, an inquiry into the circumstances surrounding the death of
David Kelly didn't require Hutton to say whether the BBC claim that Downing Street had ordered the intelligence services to
put their name to a lie was true or false. It would have been sufficient for
Hutton to establish that Gilligan believed Kelly had made the accusation at
their fateful meeting. But, rightly, Hutton thought that the public wanted to
know if the Government had forced the spies to lie. And, rightly, he
acquitted Downing Street.
Fair enough. But look what happened when Hutton was presented with apparently
incontrovertible evidence that Gilligan and Kelly were half-right and the
dossier was sexed up. His court heard that the Government knew the
intelligence about Saddam having chemical weapons ready to fire in 45 minutes
concerned puny shells which could travel a mile or so. But the Government
said Saddam had missiles which could hit Jerusalem,
Tehran or British bases in Cyprus. Was the misinformation a
mistake or a deceit?
The judge refused to pass judgment. Examining how the Government sexed-up the
dossier wasn't his job. 'Not my subject, old chap. Outside my terms of
reference, don't you know.'
It's the double-standards in his report which has put Hutton on the receiving
end of a lethal feeling in Britain:
the feeling that what he has done simply isn't fair. Before the war, two
institutions were trusted: the BBC and the judiciary. In his effort to
destroy trust in the BBC, Lord Hutton has brought a belated but deserved
disgrace to judicial inquiries.
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